Case Note & Summary
The petitioners, Shankar Govind Mali and others, challenged an order passed by the court below which temporarily restrained them from transferring, selling, alienating, creating any encumbrance, or disposing of their respective shares in the properties mentioned in Schedule 'A' and 'B' of the application, pending the final decision of the dispute. The dispute was filed by Respondent No.1, Kolhapur District Central Cooperative Bank Limited, for recovery of an amount of Rs.1,77,13,112/-. The appellate authority dismissed the petitioners' appeal, maintaining the restraint order. The petitioners argued that the Division Bench judgment in Swan Mills Limited v. Dhirajlal @ Dhirubhai Babaria (2012 (4) Mh. L. J. 937) held that once a finding is recorded that plaintiffs have not made out a case for attachment before judgment, temporary injunction cannot be granted against defendants. However, the court distinguished that case on facts, noting that it dealt with a foreign judgment and enforcement proceedings. In the present case, the trial court found sufficient material, balance of convenience in favour of the bank, and irreparable loss if the injunction was not granted. The High Court upheld the orders, finding no perversity or error in the exercise of discretion by the courts below.
Headnote
A) Civil Procedure - Temporary Injunction - Order 39 Rule 1 CPC - Balance of Convenience - The court upheld the temporary injunction granted by the trial court and affirmed by the appellate authority, restraining the petitioners from transferring or encumbering their shares in the properties, as the bank had made out a prima facie case, balance of convenience was in its favour, and it would suffer irreparable loss if the injunction was not granted. (Paras 2-4)
B) Civil Procedure - Attachment Before Judgment - Order 38 Rule 5 CPC - Distinction from Injunction - The Division Bench judgment in Swan Mills Limited v. Dhirajlal @ Dhirubhai Babaria was distinguished on facts, as that case dealt with attachment before judgment and foreign judgment enforcement, whereas the present case involved a pending recovery dispute and sufficient material to support the injunction. (Paras 5-6)
Issue of Consideration
Whether the courts below were justified in granting temporary injunction restraining the petitioners from transferring, selling, alienating, or encumbering their shares in the properties pending final decision of the recovery dispute.
Final Decision
The High Court dismissed the writ petition, upholding the orders of the trial court and appellate authority granting temporary injunction against the petitioners.
Law Points
- Temporary injunction
- Order 39 Rule 1 CPC
- Order 38 Rule 5 CPC
- Balance of convenience
- Irreparable loss
- Prima facie case
Case Details
2015 LawText (BOM) (02) 52
Writ Petition No. 8650 of 2013
Mr. Prashant S. Bhavake for the Petitioners, Mr. Shrikrishna R. Ganbavle for Respondent No.1, Mr. Anand S. Patil for Respondent No.7
Shri Shankar Govind Mali and ors.
Kolhapur District Central Cooperative Bank Limited and ors.
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Writ petition challenging temporary injunction order in a recovery dispute filed by a cooperative bank.
Remedy Sought
Petitioners sought to set aside the temporary injunction restraining them from transferring, selling, alienating, or encumbering their shares in properties.
Filing Reason
The petitioners were restrained by the trial court from transferring their shares in properties pending final decision of the recovery dispute filed by the bank.
Previous Decisions
The trial court partly allowed the application at Exh. 32 and restrained the petitioners temporarily. The appellate authority dismissed the appeal, maintaining the order.
Issues
Whether the courts below were justified in granting temporary injunction restraining the petitioners from transferring their shares in properties pending final decision of the recovery dispute.
Submissions/Arguments
Petitioners argued that the Division Bench judgment in Swan Mills Limited v. Dhirajlal @ Dhirubhai Babaria held that once a case for attachment before judgment is not made out, temporary injunction cannot be granted.
Respondent bank argued that the Division Bench judgment was distinguishable on facts, as it dealt with a foreign judgment and enforcement proceedings, whereas the present case involved a pending recovery dispute with sufficient material to support the injunction.
Ratio Decidendi
The court held that the trial court and appellate authority had exercised their discretion properly based on the material on record, finding a prima facie case, balance of convenience in favour of the bank, and irreparable loss if the injunction was not granted. The Division Bench judgment relied upon by the petitioners was distinguishable on facts.
Judgment Excerpts
The Petitioners have challenged the order passed by the Court below whereby restrained the Petitioners (opponent Nos, 3, 4 and 7) in the following terms...
The Appellate Authority by reasoned order also dismissed the Appeal filed by the Petitioners that resulted into maintaining the order so referred above.
Admittedly, the dispute filed by Respondent No.1Bank is still pending for recovery of the amount of Rs.1,77,13,112/.
Procedural History
The trial court passed an interim order on an application (Exh. 32) restraining the petitioners from transferring their shares in properties. The petitioners appealed to the appellate authority, which dismissed the appeal. The petitioners then filed a writ petition in the High Court challenging both orders.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order 38 Rule 5, Order 39 Rule 1
