Nepc Micon Limited Vs. Magma Leasing Limited and anr. - Court Judgment

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			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
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			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
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			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
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		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
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			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
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			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
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			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
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			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
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			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
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			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
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			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
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			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
		'ratiodecidendi' => '',
		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
		'link' => null,
		'circuit' => null
	)
)
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$url = 'https://sooperkanoon.com/case/amp/865998/nepc-micon-limited-vs-magma-leasing'
$ctype = ' High Court'
$caseref = 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.<br>'
$content = array(
	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
)
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R. Pal, J.

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
		'ratiodecidendi' => '',
		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
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		'circuit' => null
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	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
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1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?

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			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
		'ratiodecidendi' => '',
		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
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2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
		'ratiodecidendi' => '',
		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.<br>'
$content = array(
	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
)
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3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
	)
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
		'ratiodecidendi' => '',
		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
		'link' => null,
		'circuit' => null
	)
)
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$url = 'https://sooperkanoon.com/case/amp/865998/nepc-micon-limited-vs-magma-leasing'
$ctype = ' High Court'
$caseref = 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.<br>'
$content = array(
	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
)
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4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
		'ratiodecidendi' => '',
		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
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5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.

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			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
		'ratiodecidendi' => '',
		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
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6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
		'ratiodecidendi' => '',
		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.<br>'
$content = array(
	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
)
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7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the Arbitration and Conciliation Act, 1996 before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
	)
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
		'ratiodecidendi' => '',
		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
		'link' => null,
		'circuit' => null
	)
)
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$url = 'https://sooperkanoon.com/case/amp/865998/nepc-micon-limited-vs-magma-leasing'
$ctype = ' High Court'
$caseref = 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.<br>'
$content = array(
	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
)
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8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '(1999)2CALLT347(HC)',
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			'respondent' => 'Magma Leasing Limited and anr.',
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
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		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
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		'court' => 'Kolkata',
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		'decidedon' => '1999-04-12',
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		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
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$ctype = ' High Court'
$caseref = 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.<br>'
$content = array(
	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
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9. In this background the first impugned order was passed exparte on the following terms:

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
		'ratiodecidendi' => '',
		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.<br>'
$content = array(
	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
)
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'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
		'ratiodecidendi' => '',
		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
		'link' => null,
		'circuit' => null
	)
)
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$ctype = ' High Court'
$caseref = 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.<br>'
$content = array(
	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
)
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The order also directed the amendment of the cause title.

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
	)
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
		'ratiodecidendi' => '',
		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
		'link' => null,
		'circuit' => null
	)
)
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$url = 'https://sooperkanoon.com/case/amp/865998/nepc-micon-limited-vs-magma-leasing'
$ctype = ' High Court'
$caseref = 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.<br>'
$content = array(
	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
)
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10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
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			'favorof' => null,
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			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
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	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
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		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
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		'pubs' => '(1999)2CALLT347(HC)',
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		'respondent' => 'Magma Leasing Limited and anr.',
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	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
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'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
		'ratiodecidendi' => '',
		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
		'link' => null,
		'circuit' => null
	)
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$caseref = 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.<br>'
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	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
)
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11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
		'ratiodecidendi' => '',
		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
		'link' => null,
		'circuit' => null
	)
)
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$url = 'https://sooperkanoon.com/case/amp/865998/nepc-micon-limited-vs-magma-leasing'
$ctype = ' High Court'
$caseref = 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.<br>'
$content = array(
	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
)
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12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
		'ratiodecidendi' => '',
		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
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13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.

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Code Context
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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
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			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
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			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
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		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
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		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
		'ratiodecidendi' => '',
		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
		'link' => null,
		'circuit' => null
	)
)
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$ctype = ' High Court'
$caseref = 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.<br>'
$content = array(
	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
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14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
		'ratiodecidendi' => '',
		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
		'link' => null,
		'circuit' => null
	)
)
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$url = 'https://sooperkanoon.com/case/amp/865998/nepc-micon-limited-vs-magma-leasing'
$ctype = ' High Court'
$caseref = 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.<br>'
$content = array(
	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
)
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Clause 37 of the Letters Patent (1865) provides:

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
		'ratiodecidendi' => '',
		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
		'link' => null,
		'circuit' => null
	)
)
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$url = 'https://sooperkanoon.com/case/amp/865998/nepc-micon-limited-vs-magma-leasing'
$ctype = ' High Court'
$caseref = 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.<br>'
$content = array(
	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
)
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'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.'

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
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			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '(1999)2CALLT347(HC)',
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			'respondent' => 'Magma Leasing Limited and anr.',
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
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		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
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		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
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		'decidedon' => '1999-04-12',
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		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
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	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
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15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
		'ratiodecidendi' => '',
		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.<br>'
$content = array(
	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
	)
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
		'ratiodecidendi' => '',
		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
		'link' => null,
		'circuit' => null
	)
)
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$url = 'https://sooperkanoon.com/case/amp/865998/nepc-micon-limited-vs-magma-leasing'
$ctype = ' High Court'
$caseref = 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.<br>'
$content = array(
	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
)
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'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
	)
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
		'ratiodecidendi' => '',
		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
		'link' => null,
		'circuit' => null
	)
)
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$url = 'https://sooperkanoon.com/case/amp/865998/nepc-micon-limited-vs-magma-leasing'
$ctype = ' High Court'
$caseref = 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.<br>'
$content = array(
	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
)
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16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
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			'favorof' => null,
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			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
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		'pubs' => '(1999)2CALLT347(HC)',
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		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
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	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
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17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
	)
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
		'ratiodecidendi' => '',
		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.<br>'
$content = array(
	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
)
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'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
	)
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
		'ratiodecidendi' => '',
		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
		'link' => null,
		'circuit' => null
	)
)
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$url = 'https://sooperkanoon.com/case/amp/865998/nepc-micon-limited-vs-magma-leasing'
$ctype = ' High Court'
$caseref = 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.<br>'
$content = array(
	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
)
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18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
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		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
		'ratiodecidendi' => '',
		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
		'link' => null,
		'circuit' => null
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$caseref = 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.<br>'
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	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
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19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
		'ratiodecidendi' => '',
		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
		'link' => null,
		'circuit' => null
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$caseref = 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.<br>'
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	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
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'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
		'ratiodecidendi' => '',
		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
		'link' => null,
		'circuit' => null
	)
)
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$ctype = ' High Court'
$caseref = 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.<br>'
$content = array(
	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
)
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Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
	)
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
		'ratiodecidendi' => '',
		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
		'link' => null,
		'circuit' => null
	)
)
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$url = 'https://sooperkanoon.com/case/amp/865998/nepc-micon-limited-vs-magma-leasing'
$ctype = ' High Court'
$caseref = 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.<br>'
$content = array(
	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
)
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(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
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			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
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		'pubs' => '(1999)2CALLT347(HC)',
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		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
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	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
	)
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
		'ratiodecidendi' => '',
		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.<br>'
$content = array(
	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
)
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(II) a copy of the plaint; and

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
	)
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
		'ratiodecidendi' => '',
		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
		'link' => null,
		'circuit' => null
	)
)
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$url = 'https://sooperkanoon.com/case/amp/865998/nepc-micon-limited-vs-magma-leasing'
$ctype = ' High Court'
$caseref = 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.<br>'
$content = array(
	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
)
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(III) copies of documents on which the applicant relies, and

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
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		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
		'ratiodecidendi' => '',
		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
		'link' => null,
		'circuit' => null
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$ctype = ' High Court'
$caseref = 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.<br>'
$content = array(
	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
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(b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.'

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
		'ratiodecidendi' => '',
		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
		'link' => null,
		'circuit' => null
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$caseref = 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.<br>'
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	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
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20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
		'ratiodecidendi' => '',
		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
		'link' => null,
		'circuit' => null
	)
)
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$ctype = ' High Court'
$caseref = 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.<br>'
$content = array(
	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
)
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21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
	)
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
		'ratiodecidendi' => '',
		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
		'link' => null,
		'circuit' => null
	)
)
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$url = 'https://sooperkanoon.com/case/amp/865998/nepc-micon-limited-vs-magma-leasing'
$ctype = ' High Court'
$caseref = 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.<br>'
$content = array(
	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
)
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22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
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			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
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			'respondent' => 'Magma Leasing Limited and anr.',
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
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		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
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		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
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	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
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'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' .

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
		'ratiodecidendi' => '',
		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.<br>'
$content = array(
	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
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23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
		'ratiodecidendi' => '',
		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
		'link' => null,
		'circuit' => null
	)
)
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$ctype = ' High Court'
$caseref = 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.<br>'
$content = array(
	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
)
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24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
	)
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
		'ratiodecidendi' => '',
		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
		'link' => null,
		'circuit' => null
	)
)
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$url = 'https://sooperkanoon.com/case/amp/865998/nepc-micon-limited-vs-magma-leasing'
$ctype = ' High Court'
$caseref = 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.<br>'
$content = array(
	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
)
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'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
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			'respondent' => 'Magma Leasing Limited and anr.',
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
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		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
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		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
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	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
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25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
		'ratiodecidendi' => '',
		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.<br>'
$content = array(
	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
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26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
		'ratiodecidendi' => '',
		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
		'link' => null,
		'circuit' => null
	)
)
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$url = 'https://sooperkanoon.com/case/amp/865998/nepc-micon-limited-vs-magma-leasing'
$ctype = ' High Court'
$caseref = 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.<br>'
$content = array(
	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
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27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
		'ratiodecidendi' => '',
		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
		'link' => null,
		'circuit' => null
	)
)
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$url = 'https://sooperkanoon.com/case/amp/865998/nepc-micon-limited-vs-magma-leasing'
$ctype = ' High Court'
$caseref = 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.<br>'
$content = array(
	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
)
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28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
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			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
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			'respondent' => 'Magma Leasing Limited and anr.',
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
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		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
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		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
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	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
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29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
		'ratiodecidendi' => '',
		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.<br>'
$content = array(
	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
)
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'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.'

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
		'ratiodecidendi' => '',
		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
		'link' => null,
		'circuit' => null
	)
)
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$ctype = ' High Court'
$caseref = 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.<br>'
$content = array(
	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
)
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30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
	)
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
		'ratiodecidendi' => '',
		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
		'link' => null,
		'circuit' => null
	)
)
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$url = 'https://sooperkanoon.com/case/amp/865998/nepc-micon-limited-vs-magma-leasing'
$ctype = ' High Court'
$caseref = 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.<br>'
$content = array(
	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
)
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31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
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			'favorof' => null,
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			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
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		'pubs' => '(1999)2CALLT347(HC)',
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		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
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	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
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'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
		'ratiodecidendi' => '',
		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
		'link' => null,
		'circuit' => null
	)
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$caseref = 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.<br>'
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	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
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32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
	)
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
		'ratiodecidendi' => '',
		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
		'link' => null,
		'circuit' => null
	)
)
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$url = 'https://sooperkanoon.com/case/amp/865998/nepc-micon-limited-vs-magma-leasing'
$ctype = ' High Court'
$caseref = 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.<br>'
$content = array(
	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
)
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33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
		'ratiodecidendi' => '',
		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
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		'circuit' => null
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	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
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M. K. Basu J.

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			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
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			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
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			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
	)
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
		'ratiodecidendi' => '',
		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
		'link' => null,
		'circuit' => null
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$caseref = 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.<br>'
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	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
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34. I agree.

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
		'ratiodecidendi' => '',
		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
		'link' => null,
		'circuit' => null
	)
)
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$ctype = ' High Court'
$caseref = 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.<br>'
$content = array(
	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
)
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Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
		(int) 0 => '865998',
		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
	)
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
		'ratiodecidendi' => '',
		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
		'link' => null,
		'circuit' => null
	)
)
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$url = 'https://sooperkanoon.com/case/amp/865998/nepc-micon-limited-vs-magma-leasing'
$ctype = ' High Court'
$caseref = 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.<br>'
$content = array(
	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
)
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35. Appeal dismissed.

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	'title_for_layout' => 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '865998',
			'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
			'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
			'appellant' => 'Nepc Micon Limited',
			'authreffered' => '',
			'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Kolkata',
			'court_type' => 'HC',
			'decidedon' => '1999-04-12',
			'deposition' => '',
			'favorof' => null,
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			'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
			'judgement' => '<p style="text-align: justify;">R. Pal, J.</p><p style="text-align: justify;">1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p style="text-align: justify;">2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p style="text-align: justify;">3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p style="text-align: justify;">4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p style="text-align: justify;">5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p style="text-align: justify;">6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p style="text-align: justify;">7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p style="text-align: justify;">8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p style="text-align: justify;">9. In this background the first impugned order was passed exparte on the following terms:</p><p style="text-align: justify;">'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p style="text-align: justify;">The order also directed the amendment of the cause title.</p><p style="text-align: justify;">10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p style="text-align: justify;">'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p style="text-align: justify;">11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p style="text-align: justify;">12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p style="text-align: justify;">13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p style="text-align: justify;">14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p style="text-align: justify;">Clause 37 of the Letters Patent (1865) provides:</p><p style="text-align: justify;">'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p style="text-align: justify;">15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p style="text-align: justify;">Section 129 of the Code reinforces this in the following language :</p><p style="text-align: justify;">'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p style="text-align: justify;">16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p style="text-align: justify;">17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p style="text-align: justify;">'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p style="text-align: justify;">18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p style="text-align: justify;">19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p style="text-align: justify;">'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p style="text-align: justify;"> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p style="text-align: justify;">(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p style="text-align: justify;"> (I) a copy of the affidavit filed in support of the application;</p><p style="text-align: justify;"> (II) a copy of the plaint; and </p><p style="text-align: justify;"> (III) copies of documents on which the applicant relies, and </p><p style="text-align: justify;"> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p style="text-align: justify;">20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p style="text-align: justify;">21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p style="text-align: justify;">22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p style="text-align: justify;">'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p style="text-align: justify;">23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p style="text-align: justify;">24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p style="text-align: justify;">'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p style="text-align: justify;">25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p style="text-align: justify;">26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p style="text-align: justify;">28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p style="text-align: justify;">29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p style="text-align: justify;">'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p style="text-align: justify;">30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p style="text-align: justify;">31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p style="text-align: justify;">'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p style="text-align: justify;">32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p style="text-align: justify;">33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p style="text-align: justify;">M. K. Basu J.</p><p style="text-align: justify;">34. I agree.</p><p style="text-align: justify;">Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p style="text-align: justify;">35. Appeal dismissed. <p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '(1999)2CALLT347(HC)',
			'ratiodecidendi' => '',
			'respondent' => 'Magma Leasing Limited and anr.',
			'sub' => 'Civil;Contract',
			'link' => null,
			'circuit' => null
		)
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	'casename_url' => 'nepc-micon-limited-vs-magma-leasing',
	'args' => array(
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		(int) 1 => 'nepc-micon-limited-vs-magma-leasing'
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$title_for_layout = 'Nepc Micon Limited Vs Magma Leasing Limited and anr - Citation 865998 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '865998',
		'acts' => ' <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC), 1908</a> - Section 129 - Order 20, Rule 4(2) - Order 39, Rule 3 - Order 41, Rule 33 - Order 49, Rule 3(5);; Civil Procedure (Amendment) Code, 1976;; <a href="/act/51725/arbitration-and-conciliation-act-1996-complete-act">Arbitration and Conciliation Act, 1996</a> - Section 9',
		'appealno' => 'Civil Appellate Jurisdiction G.A. No. 1329 of 1999 A.P.O.T. No. 878 of 1999 C.S. No. 96B of 1997',
		'appellant' => 'Nepc Micon Limited',
		'authreffered' => '',
		'casename' => 'Nepc Micon Limited Vs. Magma Leasing Limited and anr.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'Indian Bank v. Metallurgical Engineering Consultants (india) Ltd.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Kolkata',
		'court_type' => 'HC',
		'decidedon' => '1999-04-12',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'Ruma Pal and;
Malay Kumar Basu, JJ.',
		'judgement' => '<p>R. Pal, J.</p><p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?</p><p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.</p><p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.</p><p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.</p><p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.</p><p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.</p><p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.</p><p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.</p><p>9. In this background the first impugned order was passed exparte on the following terms:</p><p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'</p><p>The order also directed the amendment of the cause title.</p><p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.</p><p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.</p><p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.</p><p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.</p><p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.</p><p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.</p><p>Clause 37 of the Letters Patent (1865) provides:</p><p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' </p><p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .</p><p>Section 129 of the Code reinforces this in the following language :</p><p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'</p><p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.</p><p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :</p><p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'</p><p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.</p><p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :</p><p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.</p><p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-</p><p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-</p><p> (I) a copy of the affidavit filed in support of the application;</p><p> (II) a copy of the plaint; and </p><p> (III) copies of documents on which the applicant relies, and </p><p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' </p><p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.</p><p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.</p><p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:</p><p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . </p><p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.</p><p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:</p><p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'</p><p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).</p><p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.</p><p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.</p><p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.</p><p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :</p><p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' </p><p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.</p><p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :</p><p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'</p><p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.</p><p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.</p><p>M. K. Basu J.</p><p>34. I agree.</p><p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.</p><p>35. Appeal dismissed. <p></p><p>',
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		'prhistory' => '',
		'pubs' => '(1999)2CALLT347(HC)',
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		'respondent' => 'Magma Leasing Limited and anr.',
		'sub' => 'Civil;Contract',
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		'circuit' => null
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	(int) 0 => '<p>R. Pal, J.',
	(int) 1 => '<p>1. The questions involved in this appeal are whether the provisions of Order 39 Rule 3 of the Civil Procedure Code as amended. In 1976 apply to the Original Side of this court and, if so, what is the effect of such application. Is an order which is passed without complying with Order 39 Rule 3 of the Code void ?',
	(int) 2 => '<p>2. The questions have arisen in connection with ex parte ad interim orders passed by the learned single' Judge taking interlocutory matters on 8th March 1999 and 15th March 1999. Both the orders were passed on te application of the respondent No. 1. The respondent No. 1 filed a suitagainst the appellant and the respondent No. 2 claiming inter alia a decree for Rs. 5,00,52,810 on account of hire instalments in respect of live wing turbine generators. According to the respondent No. 1 It had advanced an amount of Rs.5,15,00,000 to the appellant and the respondent No. 2 to purchase the five wind turbine generators whlc were inturn hired out by the respodent No. 1 to appellant and the respodent No. 2 byfive separate lease agreemens. The wind turbine generators were to be installed in Coimbatore in Tamilnadu. The total amount repayable by the appellant and the respondent No.l was Rs. 6,87,52,980 in instalments over a course of three years with interest (r) 11.16%. The respondent No. 2 guaranteed the repayment and fifty post dated cheques of Rs. 11.45.883/- each were also made over by the appellant to the respondent No. 1. According to the respondent No. 1 defaults were committed by the appellant from the fourh instalment and the cheques were dishonoured on presentation. It is the respondent No. 1's furher case that the appellant acknowledged its liability in writing by several letters and requested for time to make payment. Subsequently the appellant and the respondent No. 2 made payment of an amount of Rs. 58,28,590/- on 3rd January 1997 but did not pay the balance.',
	(int) 3 => '<p>3. After filing the suit for recovering the amount of Rs. 5,00.52,810/-an interlocutory application was moved (referred to as the first application) and an order was passed on 8.4.1997 inter alia appointing a Receiver to take possession of the five wind turbine generators. The orders was appealed against and stayed. In the meantime, the Receiver had already proceeded but was unable to locate the five wind turbine generators. The respondent No. 1 has further stated that while the respondent No. 1 was in Madras with the Receiver he found that the same wind turbine generatois had been sold by the appellant to M/s. Fast Leasing Company of india Ltd. and the appellant had entered into similar lease agreements with M/s. Fast Leasing Company of india Limited in respect of the same generators.',
	(int) 4 => '<p>4. On a second application filed by the respondent No. 1, on 5th August 1997 an order was passed directing the appellant to maintain separate accounts with regard to the monies realised by them from the Tamil Nadu Electricity Board (referred to as TNEB). According to the Respondent No. 1 this was not complied with and a further order was passed directing the Receiver to ascertain whether the wind turbine generators were still in Combatore and the amount payable by the TNEB to the appellant. It was further directed that the amount should be kept in separate account by the appellant and the respondent No. 2 under advice to the Receiver. An appeal was again preferred from this order by the appellant. The appellate court set aside the portion of the order which related to the Receiver making enquiry from the TNEB. The order of the appellate court was in turn stayed by the Supreme Court on a Special Leave Petition filed by the respondent No. 1.',
	(int) 5 => '<p>5. The first application was disposed of on 17th February 1998 by directing the Receiver to take possession of the five wind turbine generators. The respondent No. 1 preferred an appeal on the ground that the generators were no longer available. The appellate court directed the Receiver to visit Nallurpalayam village to take possesion of the wind turbine generators at the cost of the respondent No. 1 after appropriate identification. The Receiver went to the site. According to the respondent No. 1 the generatorsshown were not those which were subject matter of the lease agreements and were in fact Junk.',
	(int) 6 => '<p>6. The appeal court directed the Receiver to take possession of the generators as indicated by the appellant and the respondent No. 2 and also directed the Receiver to take symbolic possession of a sum of Rs. 2 crores lying with TNEB on account of appellant. The appeal court also directed the sale of the generators. Advertisements were issued for sale of the generators and the highest offer obtained was Rs. 10,00,000/- The sale was confirmed on 8th December 1998. By the same order the Receiver was directed to take possession of the sums lying with the TNEB to the extent of Rs. 4.50 crores.The appellant challenged the order dated 8th December 1998 by way of the Special Leave Petition. This was dismissed by the Supreme Court on 1st February 1999.',
	(int) 7 => '<p>7. On 3rd February 1999 the respondent No. 1 filed an application (referred to as the third application) for a direction on TNEB to comply with the order dated 8.12.98 but came to know that the appellant filed an application under section 9 of the <a>Arbitration and Conciliation Act, 1996</a> before the Chennai High Court and obtained an order directing the TNEB to pay the amounts due to the appellant to the applicant. The TNEB preferred an appeal from the order and the operation of the order has been stayed. In the meanwhile pursuant to another order of the High Court at Chennai TNEB deposited a sum of Rs. 1.72 crores with the UCO Bank at Chennai.',
	(int) 8 => '<p>8. According to the respondent No. 1 the several orders of this court to secure the respondent No. 1's claim had been deliberately frustrated by the appellant. Further enquires were made by the respondent No. 1 when it came to learn that the appellant had changed its name from NEPC Mlcon Limited to NEPC india Limited and that the appellant ran an Airline service under the name of NEPC Airlines. The appellant was selling spare parts and components to Aircrafts and the sale proceeds were being diverted to the wife of Respondent No. 2. Further spare parts were about to be sold. In the circumstances, another interlocutory application was filed by the respondent No. 1 in which it was prayed that a Receiver should be appointed over the spare parts to make an inventory of the same and to sell the same and from the sale proceeds a sum of Rs. 4.50 crores be kept deposited in a bank. It was also prayed that the order should be passed exparte as otherwise the spare parts whould be disposed of by the appellant to defeat the admitted claim of the respondent No. 1 against the appellant.',
	(int) 9 => '<p>9. In this background the first impugned order was passed exparte on the following terms:',
	(int) 10 => '<p>'Mr. Surhid Roy Chowdhury, Barrlster-at-law is appointed receiver for the purpose of taking symbolical possession and make an inventory of the spare parts particulars of which are mentioned in prayer (c) of the Notice of Motion. There will be an ad interim order of injunction restraining the respondents from in any way or manner parting with possession and/or disposing of and/or alienating or otherwise encumbering any of the said spare parts. The receiver shall be entitled to an initial remuneration of 400 GMs. to be paid by the petitioner at the firstinstance. The travelling and hotel arrangements for the receiver shall be arranged for and the cost thereof shall be borne by the petitioner at the first instance. The receiver shall visit the site without giving notice. The receiver will be entitled to take police help, if necessary, so as to comply with this order. The receiver shall submit his report on 17.3.99 when the matter shall appear in the list as a new motion.'',
	(int) 11 => '<p>The order also directed the amendment of the cause title.',
	(int) 12 => '<p>10. On 15th March 1999 an order was passed incorporating the followng in the order dated 8th March 1999.',
	(int) 13 => '<p>'The Receiver shall in addition to taking symbolic possession of the spare parts of the alrcrafts lying at Old Madras Airport as directed in my order dated 8th March 1999 shall take symbolic posseslon of the spare parts which are stated to be also lying at 20 (NP) industrial Estate, Ambaltur, Chennai 600 098 and 83 MTH Road, Ambaltur Chennai 600 098 and shall make an inventory thereof in tems of the order dated dated 8th March 1998.',
	(int) 14 => '<p>11. The appellant has preferred this appeal on 6th April, 1999 and has submitted, on the basis of several authorities viz. Shlu Kumar Chadha v. Municipal Corporation of Delhi reported in 1993(3) SCC 163; Bartsal Tea Warehouse v. Falakate industries Ltd. : 1994(1) CHN 351: Morgan Stanley Mutual Fund v. Kartick Das : (1994)4SCC225 ; Ramchandra Kcshau Adkev, GovtndJonChavere : [1975]3SCR839 ; Rood Flying Carrier v. GEC of india Ltd. 0044/1990 : AIR1990All134 ; AparajUa Mukherjee v. Anil Kumar Mukherjee : AIR 1990 Guwahati 73, para 7; and Amiya Prasad v. Bejoy Krishna Chakraborty : AIR1981Cal351 that since no reason had been given by the learned single Judge in support of the exparte orders as required under Order 39 Rule 3 of the Code of Civil Procedure, the orders were void and should be declared as such and that whatever steps has been taken subsequent to the orders should be reversed or set at naught. The apellant has submitted that not only were the orders unsupported by reason contrary to Order 39 Rule 3 of the Code but also were bad in that no copy of the orders had been served on the appellant by the respondent No. 1 immediately after the same had been passed. According to the appellant this view was also supported by the stated object of the Act which ammended order 39 Rule 3 of the Code.',
	(int) 15 => '<p>12. The respondent No. 1 has submitted that earlier the law undisputedly was that Judges on the original side were not required to give reasons in support of any interlocutory order. Reliance has been placed on the observations of the Supreme Court in Simran Lata v. Harendra Kumar : [1969]3SCR976 in support of his submission in this connection. It is submitted that Letters Patent had given the power to the High Court to frame its own rules to govern procedure on the Original Side. As far as interlocutory applications were concerned, these were contained in Chapter XX of the Original Side Rules. None of the provisions of Chapter XX required the learned Judge entertaining an interlocutory application to give any reason. Reliance has also been placed on the language of Chapter XX Rule 3 in particular to contend that the bases for grant of interim order as specified in the Code were different from those specified under the OriginalSide Rules and that the requirement for giving reasons was limited to the particular basis mentioned in Order 39 Rule 3. The absence of that particular basis in Chapter XX, according to the respondent, indicated that there was no requirement for giving reasons on the Original Side.',
	(int) 16 => '<p>13. According to the respondent No. 1 even if the provisions of Order 39 Rule 3 applied to the Original Side, nevertheless, an order unsupported by reasons was not void. The following decisions have been cited in support of this submission, namely Muktakesl Dawn v. Horfpada Mazumdar : AIR1988Cal25 and Vinayak Conclave Put. Ltd. v. Life insurance Corporation : AIR1995Cal113 . It is submitted that the obligation under Order 39 Rule 3 is on the court and if the court does not give reasons, the litigant should not be prejudiced thereby. Reliance has also been placed on the language of Order 39 Rule 3 to submit that it did not provide for the consequences of non-compliance with its provisions. Finally it is submitted that at the highest the order was vitiated in the sense that it was liable to be set aside but that it was open to the appellate court to see whether the order could be Jusufied on the basis of the materials which were before the learned trial court.',
	(int) 17 => '<p>14. In reply the appellant contended that the provisions of the Code are applicable to the Original Side of this court unless the provisions of the Code are repugnant to the Original Side Rules under section 129 or expressly barred under Order 49 Rule 3 of the Code.',
	(int) 18 => '<p>Clause 37 of the Letters Patent (1865) provides:',
	(int) 19 => '<p>'37. And we do further ordain, that It shall be lawful for the said High Court of Judicature at Fort William in Bengal from to time to make rules and orders for the purpose of regulating all proceedings in civil cases which may be brought before the said High Court, including proceedings in its Admiralty, Vice-Admiralty. Testamentary, intestate, and Matrimonial jurisdictions respectively : Provided always, that the said High Court shall be guided in making such rules and orders, as far as possible, by the provisions of the Code of Civil Procedure belng an Act passed by the Governor-General in Council, and being Act No VIII of 1895. and the provisions of any law which has been made, amending or altering the same, by competent legislative authority for India.' ',
	(int) 20 => '<p>15. Pursuant to this power, Rules applicable to original side of this court were framed (hereafter referred to as OSR). It is not in dispute that if any provision of the Code is contrary to the OSR, the OSR would prevail (see : In re ; Ram Dayal : AIR1932Cal1 .',
	(int) 21 => '<p>Section 129 of the Code reinforces this in the following language :',
	(int) 22 => '<p>'129. Power of High Courts to make rules as to their original civil procedure.--Notwithstanding anything in this Code, any High Court, not being the court of a Judicial Commissioner, may make such rules not inconsistent with the letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its orglnal civil Jurisdiction as u shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.'',
	(int) 23 => '<p>16. But the phrases in clause 37 of the letters Patent emphasised above evidence the intention that the OSR must be read and construed as harmoniously with the provisions of the Code as possible.',
	(int) 24 => '<p>17. With this caveat the provisions of the OSR and the Code dealing with exparte ad-interim order may be compared. Chapter XX of the OSR deals with interlocutory applications and is entitled 'Motions and Rules Nisi'. The relevant Rule of this Chapter is Rule 3 which reads :',
	(int) 25 => '<p>'3. Except where otherwise provided by Statute or prescribed by these rules, all applications, which in accordance with these rules cannot be made in chambers, shall be made on motion after notice to the parties effected thereby, unless, according to the practice existing at the time of the passing of these rules, an order might be made absolute ex parte in the first instance; but the court, where satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order, ex parte, upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the court may think just, and any party affected by such order may move to set it aside.'',
	(int) 26 => '<p>18. The language does not require a Judge on the original side of the High Court to give reasons in support of an exparte order and the power is an unconditional one.',
	(int) 27 => '<p>19. Order 39 Rule 3 of the Code of Civil Procedure on the other-handsays :',
	(int) 28 => '<p>'Rule 3. Before granting injunction, court to ditect notice to opposite party. The court shall in 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 parly.',
	(int) 29 => '<p> Provided that, where it is proposed to grant an injunction without giving notice of the application to the other party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-',
	(int) 30 => '<p>(a) to deliver to the opposite parry, or send to him by registered post, Immediately after the order granting the injunction has been made, a copy of the application for injunction together with-',
	(int) 31 => '<p> (I) a copy of the affidavit filed in support of the application;',
	(int) 32 => '<p> (II) a copy of the plaint; and ',
	(int) 33 => '<p> (III) copies of documents on which the applicant relies, and ',
	(int) 34 => '<p> (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.' ',
	(int) 35 => '<p>20. The submission of the respondent that the basis for passing an exparte order under Chapter XX Rule 3 namely 'irreparable or serious mischief' and the basis for passing an exparte order under Order 39 Rule 3 namely that 'the object of granting the injunction would be defeated by delay' are different, is unacceptable. The second basis would take withinits purview the first. The difference in language between the two provisions is of no legal significance and the phrases in effect mean the same thing. To say, in the circumstances, that the provisions of Order 39 Rule 3 will not be applicable to the original side of this court base on this difference in language is to indulge in semantic hair splitting.',
	(int) 36 => '<p>21. The proviso in Order 39 Rule 3 was inserted by the Civil Procedure Code (Amendment) Act, 1976. Apart from broadly stating that the amendments were introduced in order to ensure a fair trial, to expedite disposal of suits and reduce complexities in the procedure the statement of objects and reasons do not refer specifically to the amendment introduced in Order 39.',
	(int) 37 => '<p>22. However, having regard to the language of the Letters Patent it appears to us to be clear that the provisions of the Code should be incorporated as far as possible in the OSR. In other words it is desirable that all exparte ad-interim order should be supported by reasons. It is noteworthy that the requirement for giving reasons even in a judgment as directed by Order 20 Rule 4(2) of the Code have by Order 49 Rule 3(5) been expressly excluded from application to any Chartered High Court in the exercise of its oredinary or extra ordinary jurisdiction. Yet the Supreme Court in Swaran Lata v. Harcndra Kumar (supra) when faced with a decree unsupported by reasons set it aside not only because it was erroneous on the face of it but also 'because the conclusion of the court ought normally to be supported by reasons duly recorded'. The Supreme Court also observed:',
	(int) 38 => '<p>'A Judge of a Chartered High Court is not obliged to record a judgment strictly according to the provisions contained in Rule 4(2) and 5 of Order 20, Code of Civil Procedure. But the privilege of not recording a judgment is intended normally to apply where the action is undefended, where the parties are not at issue on any substantial matter. In a summary trial of an action where leave to defend is not granted. In making interlocutory orders or in disposing of formal proceedings and the like.' . ',
	(int) 39 => '<p>23. The fact that the Supreme Courts decision was in 1969, before the 1976 Amedment Act came into force does not alter the situation in so far as the interpretation of the power of the Judges of the Chartered High Courts as far as interlocutory applications are concerned. Purely as a matter of interpretation, therefore, we hold that non compliance, however, with the provisions of Order 39 Rule 3 by a Judge on the Original Side of Chartered High Court would not result in the order being invalid.',
	(int) 40 => '<p>24. Order 39 Rule 3 does not in terms provide that the failure of a Judge to give reasons would render the order void. In Shfu Kumar Chandha v. Muntctpal Corporation of Delhi (supra) while interpreting Order 39 Rule 3 the Supreme Court said:',
	(int) 41 => '<p>'The requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed whyinstead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the exparte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But the same cannot be said in respect of the proviso to Rule 3 Order 39.'',
	(int) 42 => '<p>25. This view was reiterated in Morgan Stanley Mutual Fund v. Karttck Das (supra).',
	(int) 43 => '<p>26. if by the use of the word 'vitiate' the Supreme Court meant that the order was rendered imperfect, or faulty it would mean that an unreasoned order would be liable to be set aside in appeal. However, if the Supreme Court meant that an unreasoned order would be invalid without legal validity or force it would mean that the court did not have the jurisdiction to have passed such an order at all. We do not read Shiv Kumar Chandha's case as holding that an unreasoned exparte interim order is invalid in the second sense. In any event, because of Chapter XX Rule 3, as far as the original side of this court, is concerned an unreasoned exparte order would be invalid in the first sense, if the requirements or Order 39 Rule 3 are construed as mandatory in the sense that non-compliance would result in the order being void, then it must be held that the conditional power of a court under Order 39 Rule 3 is contrary to and therefore repugnant to the unconditional power of the High Court on its original side under Chapter XX Rule 3 of the OSR.',
	(int) 44 => '<p>27. In several of the decisions cited by the appellant 11 is also not clear whether the court's have held that an unreasoned order is invalid in the second sense. In Aparajtt Mukhcrjee v. Anil Kumar Mukherjee (supra) the Division Bench of the Guwahatl High Court set aside the exparte order of a District Judge saying that 'it canot be sustained'. A learned single Judge of this court in Amiya Prosad v. Bejoy Krishna Chakraborty (supra) said an exparte order passed by a Munsif in vlolatlion of Order 39 Rule 3 was illegal'. The Division Bench of the Allahabad High Court in Royal Flying Carrier v. The General Eteclrtc Company (supra) held that because the Civil Judge had failed to record reasons for granting the exparle injunction, his order was 'not sustainable'. Finally, a Division Bench of this court in Banial Tea Warchous v. Falkata industries (supra) set aside an exparte order of a District Judge because there had been a departure from the process prescribed under Order 39 Rule 3.',
	(int) 45 => '<p>28. The common distinguishing factor in all these cases is that none of the courts were dealing with an order passed by a Judge of a Chartered High Court having provisions similar to Chapter XX Rule 3 of the OSR.',
	(int) 46 => '<p>29. Furthermore, none of the cases said that the order was void. if such an order were void appellate court would have no option but to declare itas such and remand the matter back to the erring court. But in some cases including the case of Shiv Kumar Chandha v. Municipal Corporation of Delhi (supra) the appellate court itself decided the matter on the merits of the matter without remalnding the matter back. This is also in keeping with the provisions of Order 41 Rule 33 of the code provides :',
	(int) 47 => '<p>'33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed tn one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.' ',
	(int) 48 => '<p>30. To hold that an exparte unreasoned interlocutory order is void would also lead to the absurd result that the very object which is sought to be achieved by the petitioner in protection himself against irreparable injury might be defeated by the failure of the court to act in terms of Order 39 Rule 3-a factor over which no litigant can have any control.',
	(int) 49 => '<p>31. This is the reason why perhaps the Division Bench of this court in Muktakcshi Dawn v. Haripada Mazutrtdar (supra) said :',
	(int) 50 => '<p>'II is true that the relevant Proviso to R.3, as inserted by the Amendment Act, 1976, mandates recording of such reasons and that for good reasons. Firstly, such recording of reasons would, to borrow from the old Privy Council decision in Gunga Gobind Mundal (1867) 11 Moo ind. App 345 at 368, operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objection. An secondly, since an appeal lies against such exparte order of injunction, such record of reasons would go a very long way to help the appellate court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. But even then, we are inclined to think that the mandate in Proviso to R. 3 to record reasons ts not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the court, while making the order, did not record thte reasons for proceeding exparte.'',
	(int) 51 => '<p>32. This view was followed in M/s. Vlnayak Conclave Put. Ltd. v. LIC : AIR1995Cal113 (See also Indian Bank v. Metallurgical Engineering Consultants (india) Ltd. : 98 CWN 1145 (DB)]. To sum up, the failure to give reasons would, in our view, make the order vulnerable in appeal but not destroy it altogether. The same conclusion is also reached by us with regardto the failure of the court to direct the service of the order and for the same reasons.',
	(int) 52 => '<p>33. As far as the facts are concerned it is clear that there was sufficient material before the learned single Judge to warrant passing of an exparte interim order. Therefore while deprecating the practice of not giving reasons in support of interlocutory orders particularly at the exparte stage, we confirm the order and dismiss the appeal with no order as as to costs.',
	(int) 53 => '<p>M. K. Basu J.',
	(int) 54 => '<p>34. I agree.',
	(int) 55 => '<p>Let a xerox copy of this Judgment duly signed by the Assistant Registrar of this court be made available to the parties upon their undertaking to apply for and obtain certified copy thereof on payment of usual charges.',
	(int) 56 => '<p>35. Appeal dismissed. <p>',
	(int) 57 => '<p>'
)
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