The present Appeal was directed against the order directing the Assistant Commissioner-cum-Land Acquisition Collector to deposit the compensation amount of the acquired land of the Appellant alongwith up-to-date interest before the Registrar General of the High Court and the Registrar General was directed to deposit the same in fixed deposit, with a further direction that release of the said amount shall abide by the decision in the civil suit.
The Respondent Bank had filed a recovery suit against the Appellant and also seeking protection under Order 39 Rules 1 & 2 and Order 38 Rule 5 read with Section 151 of the Code of Civil Procedure, 1908 (CPC) for attachment of the property of the Appellant and the same was allowed. During the pendency of the suit, Bank sought modification of the above order and the Appellant was restrained from receiving the compensation amount from the Land Acquisition Collector. Objections were filed and disposed vide the impugned order wherein Appellant argued that the impugned order was bad on the ground that the amount of compensation awarded by the Land Acquisition Collector, in terms of the acquisition proceedings was not liable for attachment in terms of the provisions of Section 52-A of the Land Acquisition (Himachal Pradesh Amendment) Act, 1986 besides other grounds. Bank coming to know about acquisition proceedings and passing of award, sought restrain order against the Land Acquisition Collector from releasing the compensation amount in favour of the Appellant and also restraining him from receiving the same.
Whether the amount of compensation can be attached, was the question before the Court. The Court making reference to Section 52-A of the Land Acquisition Act, 1894 (Act) observed that the awarded amount in respect of the property, which cannot be attached in terms of Section 60 of the Code of Civil Procedure, 1908 (CPC), cannot be attached. It nowhere mandates that if the property which can be attached in terms of Section 60 of the CPC, is acquired, the awarded amount/compensation amount cannot be attached. The purpose, aim and object of the provision is only to provide protection to the judgment debtor in respect of the property which cannot be attached in terms of Section 60 of the CPC and protection cannot be extended in respect of the property which is liable to be attached in terms of Section 60 of the CPC. The words, as referred to in Section 52A of the Land Acquisition Act, "in respect of the land" have a significance and are to be interpreted, while keeping in view the provisions of Section 60 of the CPC. Applicant has to carve out that he/she has a prima-facie case, balance of convenience lies in his/her favour and in case restraint order is not made, he/she will suffer irreparable loss and injury.
While considering the question of granting an order of injunction one way or the other, the court, apart from finding out a prima facie case, would consider the question in regard to the balance of convenience of the parties as also irreparable injury which might be suffered by the plaintiffs if the prayer for injunction is to be refused. Further, as per the settled principle of law even where prima facie case is in favour of the plaintiff, the Court will refuse temporary injunction if the injury suffered by the plaintiff on account of refusal of temporary injunction was not irreparable. As held by Supreme Court while granting or refusing interim relief, during the pendency of the suit, in terms of provisions of Order 39 Rules 1 & 2 of the CPC, the conduct of the parties is also of vital importance and hence apart from considering the three basic principles for granting temporary injunction, the Court also to take into consideration the conduct of the parties.
In the context of present case, it was held that the impugned order was discretionary one and was been passed legally and rightly, thus requiring no interference and accordingly the impugned order was upheld.
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
Simranjeet Singh,
Versus
Decided on : 13.05.2014
Punjab & Sind Bank
....Respondent
Decided on : 13.05.2014
Coram:
The Hon’ble Mr. Justice Mansoor Ahmad Mir, Acting Chief Justice
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
This Letters Patent Appeal is directed against the
order dated 17th April, 2013, made by the learned Single
Judge in Civil Suit No. 24 of 2003, whereby Original
Miscellaneous Petition No. 198/2012 was disposed of and
whereunder
the
Assistant
Commissioner-cum-Land
Acquisition Collector (Railway), Una was directed to deposit
the compensation amount of the acquired land of the
appellant alongwith up-to-date interest before the Registrar
General of this Court and the Registrar General was directed
to deposit the same in fixed deposit, with a further direction
that release of the said amount shall abide by the decision in
the civil suit, supra, for short “the impugned order”.
2.
The Registry had wrongly diarized this appeal as
Letters Patent Appeal, is an appeal in terms of Order 43 Rule
1(r) of the Code of Civil Procedure, for short the “CPC”. The
rt
Registry is directed to diarize the same accordingly.
It is necessary to give brief facts of the case, the
3.
womb of which has given birth to the present appeal.
The respondent-plaintiff had filed a suit against
4.
the appellant-defendant for recovery of `36,67,933/- with
interest @ 18% per annum from the date of filing of suit till its
recovery, on the basis of the averments contained in the
memo of plaint.
5.
Alongwith the suit, the respondent-plaintiff had
moved Original Miscellaneous Petition No. 360/2003 in terms of the
provisions of Order 39 Rules 1 & 2 and Order 38 Rule 5 read with
Section 151 of the CPC, for attachment of the property of the
appellant-defendant.
6.
After
noticing
the
pleadings
and
reliefs,
contained in OMP No. 360/2003, the learned Single Judge,
vide Order dated 28.11.2003, had directed the parties to
maintain status quo in respect of the property, particulars of
which are contained in the said application.
It is profitable
to reproduce the said order herein:
“Learned counsel appearing for the
defendant prays for and is granted two weeks
time to file reply.
In the meanwhile, status quo as of today
in respect of the property to be attached shall
be maintained by the parties. Replication to
the written statement shall also be filed within
four weeks. List thereafter.
Dasti copy on usual terms.”
7.
Thereafter, vide order dated 11th March, 2004,
order dated 28.11.2003 was made absolute and OMP No.
360/2003 was finally disposed of. It is apt to reproduce the
said order herein:
Heard learned counsel for the parties.
Order dated 28th November, 2003 is made
absolute till the disposal of the suit.
The
application is disposed of.
CS No. 24/2003:
Be listed before the Registrar (Vigilance)
for admission and denial of the documents.”
8. During the pendency of the suit, the
“OMP No. 360/2003:
respondent-plaintiff had moved Original Miscellaneous
Application No. 198 of 2012, in terms of the provisions
of Order 39 Rule 4 read with Section 151 CPC, for
modification of order dated 11.3.2004, supra.
9.
Notice
was
issued
to
the
appellant-
defendant vide order dated 19th June, 2012 and in the
meantime, the appellant-defendant was restrained
from receiving the compensation amount from the
Land Acquisition Collector, Railway, Una.
10.
The
appellant-defendant
had
filed
objections to the said application on 1st January, 2013
and the respondent-plaintiff had filed rejoinder to the
After hearing the learned Counsel for the
11.
said objections on 18th March, 2013.
parties, the learned Single Judge had made the
12.
impugned order.
Feeling
aggrieved,
the
appellant-
The order came to be made in terms of
this appeal.
defendant has questioned the same by the medium of
the provisions of Order 39 Rules 1, 2, 4 and Order 38
Rule 5 of the CPC, while hearing the case in original
civil jurisdiction, is appealable in terms of Order 43 Rule
1(r) of the CPC.
13.
The learned Counsel for the appellant-
defendant argued that the impugned order is bad on
the
ground
that
the
amount
of
compensation
awarded by the Land Acquisition Collector, in terms of
the
acquisition
proceedings,
is
not
liable
for
attachment in terms of the provisions of Section 52-A
of
the
Land
Acquisition
(Himachal
Pradesh
Amendment) Act, 1986, for short “the Act”. He further
argued that the property, description of which has
been given in OMP No. 360/2003, was not the subject
matter of the suit, thus compensation amount was to
be released in favour of the appellant-defendant.
The learned Counsel for the respondent-
14.
plaintiff argued that the appellant-defendant has
defrauded not only the bank but also the employees of
the bank and the other persons, OMP No. 360/2003 was
for restraining the appellant-defendant from alienating
the property in order to prevent him from causing
obstruction and delay in execution of the judgment
and decree, that may be passed against him in the
said suit. Status quo order dated 28.11.2003 was made
absolute vide order dated 11th March, 2004, has
attained finality.
He further argued that the landed
property of the appellant-defendant was acquired by
the Land Acquisition Collector despite the entries made
in the relevant revenue record relating to the said
interim direction.
15.
On noticing the acquisition proceedings
and passing of award, the plaintiff-respondent had
filed
OMP
No.198/2003
for
restraining
the
Land
Acquisition Collector from releasing the compensation
amount in favour of the appellant-defendant and
restraining him from receiving the same, which was
granted to him in ex-parte order dated 19.6.2012 and
thereafter, it was made absolute in terms of the
impugned order.
The appellant-defendant has not denied
16.
the factum of ownership of the said land, the
description of which is given in OMP No. 360/2003.
Thus, it cannot be said that the order is bad or the
property to the lis belongs to some other person. The
order was made in terms of Order 39 Rules 1 & 2 and
Order 38 Rule 5 read with Section 151 of the CPC,
which has attained finality and the purpose of the
order was just to restrain the appellant-defendant from
making alienation in order to give a slip to the law and
to render the judgment/decree useless.
17.
Before we deal with the merits of the case,
it is profitable to discuss that while making an order
under Order 39 Rules 1 & 2 of the CPC, Court has to
keep in mind three principles, as under:
(i) Prima-facie case;
(ii) balance of convenience; and
(iii) irreparable loss and injury.
18.
All
the
three
principles,
which
are
required for making an order in terms of Order 39 Rules
1 & 2 of the CPC, are in favour of the plaintiff-
respondent.
The question is, whether it is the same
property, description of which has been given in OMP
No. 360/2003, or somewhat different property.
While
going
through
the
abstract
of
19.
revenue record, the OMPs No. 360/2003 and 198/2012,
we find that the property is the same and belongs to
the appellant-defendant, which is also admitted. Thus,
the argument made by the learned Counsel for the
appellant-defendant is devoid of any force.
The moot question is whether the amount
20.
21.
Act:
of compensation can be attached.
It is apt to reproduce Section 52-A of the
“Protection
of
compensation-No
awarded or awardable
compensation
under this Act-
(a)
before it is actually paid to the
person entitled to receive the
same; or
(b)
before or after it is actually paid
to the person entitled to receive
the same in respect of any land
which is not liable, under the
law for the time being in force,
to attachment or sale in
execution of a decree or order
of any court:;
shall be liable to seizure, attachment or
sequestration by process of any court, at
the instance of a creditor, for any demand
against
the
person
entitled
to
compensation, or in satisfaction of a
decree or order of any court, and,
notwithstanding anything to the contrary in
any law for the time being in force, neither
the official assignee nor any receiver
appointed under any law shall be entitled
to proceed against or to have any claim on
any such compensation.”
While going through the plain language of
22.
the aforesaid Section, it appears that the awarded
amount in respect of the property, which cannot be
attached in terms of Section 60 of the CPC, cannot be
It nowhere mandates that if the property
attached.
which can be attached in terms of Section 60 of the
CPC, is acquired, the awarded amount/compensation
23.
amount cannot be attached.
The purpose, aim and object of this
provision, it appears to us, is only to provide protection
to the judgment debtor in respect of the property
which cannot be attached in terms of Section 60 of
the CPC and protection cannot be extended in
respect of the property which is liable to be attached
in terms of Section 60 of the CPC.
The words, as
referred to in Section 52-A of the Land Acquisition Act,
“in respect of the land” have a significance and are to
be interpreted, while keeping in view the provisions of
Section 60 of the CPC.
24.
The learned Counsel for the parties have
not argued on these lines and even the learned
Counsel for the appellant-defendant has not made any
effort to distinguish whether Section 52-A of the Act can be
pressed into service in respect of the property which is
liable for attachment in terms of Section 60 of the CPC
and in respect of any land which is not liable under the
law for the time being in force for attachment or sale
in execution of decree of order of any Court.
Applicant has to carve out that he/she has
25.
a prima-facie case, balance of convenience lies in
his/her favour and in case restraint order is not made,
he/she will suffer irreparable loss and injury.
It is
necessary to give details of the law laid down by the
Apex Court and the Hon’ble High Courts and Privy
Council while discussing the mandate of Order 39
Rules 1 & 2 of the CPC. The Hon’ble Supreme Court in
cases titled as Manohar Lal Chopra versus Rai Bahadur
Rao Raja Seth Hiralal, reported in AIR 1962 SC, 527,
Hari Shankar and others versus Satya Prakash and
another, reported in AIR 1982 Rajasthan 183, M.
Gurudas & others versus Rasaranjan & others, reported
in 2006 AIR SCW 4773, Skyline Education Institute (Pvt.)
Ltd. versus S.L. Vaswani & another, reported in 2010 AIR
SCW 628,
Kashi Nath Samsthan and another versus
Shrimad Sudhindra Thirtha Swamy and another, reported in
(2010) 1 SCC 689,
Super Cassettes Industries Ltd. versus
Music Broadcast Pvt. Ltd., reported in 2012 AIR SCW 2915,
Jehal Tanti & others versus Nageshwar Singh (D) thr.
LRs, reported in 2013 AIR SCW 2854 and Mohd. Mehtab
Khan and others versus Khushnuma Ibrahim Khan and
others, reported in (2013) 9 SCC 221, has discussed all
the three principles.
It is apt to reproduce paras 19 & 22 of M.
26.
Gurudas’ judgment, supra, herein:
“19.
While considering an application for
injunction, it is well-settled, the courts would
pass an order thereupon having regard to:
(i) Prima facie
(ii) Balance of convenience
(iii) Irreparable injury.
27.
22. While considering the question of granting
an order of injunction one way or the other,
evidently, the court, apart from finding out a
prima facie case, would consider the question
in regard to the balance of convenience of
the parties as also irreparable injury which
might be suffered by the plaintiffs if the prayer
for injunction is to be refused. The contention
of the plaintiffs must be bona fide. The
question sought to be tried must be a serious
question and not only on a mere triable issue.
[See Dorab Cawasji Warden v. Coomi Sorab
Warden and Others, (1990) 2 SCC 117, Dalpat
Kumar and Another v. Prahlad Singh and
Others (1992) 1 SCC 719, United Commercial
Bank v. Bank of India and Others (1981) 2 SCC
766, Gujarat Bottling Co. Ltd. and Others v.
Coca Cola Co. and Others (1995) 5 SCC 545,
Bina Murlidhar Hemdev and Others v.
Kanhaiyalal Lokram Hemdev and Others
(1999) 5 SCC 222 and Transmission Corpn. of
A.P. Ltd (supra)]”
The Hon’ble apex Court in Super Cassettes
Industries’ case, supra, in paras 50 & 51 held as under:
“50.
Therefore, the jurisdiction and authority of
only the Tribunals, but also the Courts are
structured by the statutory grants and
limitations.
51. However, both the grant as well as the
limitations could be either express or
implied from the scheme of a particular
enactment.
The considerations relevant
for ascertaining whether there is an implied
grant of such powers, as can be culled out
from the various judgments relied upon by
the learned counsel appearing in these
matters, which have been taken not of by
my learned brother Justice Kabir, appear
to be; (1) need to preserve status quo with
respect to the subject matter of the dispute
in order to enable the party, which
eventually succeeds in the litigation, to
enjoy the fruits of the success; and (2)
need to preserve the parties themselves a
consideration, which weighed heavily with
this Court in implying such powers in favour
of the Magistrates while exercising the
jurisdiction under Section 125 of the Code
of Criminal Procedure.”
28.
The Apex Court in another case titled Best
Sellers Retail (India) Private Ltd. versus Aditya Birla
Nuvo Ltd. and others, reported in (2012) 6 SCC 792,
also held that the plaintiff has not only to show prima
facie case, but also has to carve out a case for grant
of relief by disclosing and indicating that all the said
three principles not only exist but co-exist. It is apt to
reproduce para 29 of the judgment, supra, herein:-
“29. Yet, the settled principle of law is that
even where prima facie case is in favour
of the plaintiff, the Court will refuse
temporary injunction if the injury suffered
by the plaintiff on account of refusal of
temporary
injunction
was
not
irreparable.”
29.
Recently, the apex Court has developed
another principle and has held that while granting or
refusing interim relief, during the pendency of the suit,
in terms of provisions of Order 39 Rules 1 & 2 of the
importance.
CPC, the conduct of the parties is also of vital
The Apex Court in Dalpat Kumar and
another versus Prahlad Singh and others, reported in
AIR 1993 SC 276, M/s Gujrat Bottling Co. Ltd. & others
versus Coca Cola Company and others, reported in
AIR 1995 SC 2372, Mandali Ranganna & others etc. versus
T. Ramachandra & others, reported in 2008 AIR SCW 3817
and Makers Development Services Private Ltd. versus
M. Visvesvaraya Industrial Research and Development
Centre, reported in (2012) 1 SCC 735 has held that in
addition to three principles, the Court has also to take
into consideration the conduct of the parties.
30.
It is profitable to reproduce para 18 of
Mandali’s judgment, supra, herein:
“18. While considering an application for
grant of injunction, the Court will not only
take into consideration the basic
elements in relation threreto viz.,
existence of a prima facie case,
balance of convenience and irreparable
injury,
it
must
also
take
into
consideration the conduct of the parties.
Grant of injunction is an equitable relief.
A person who had kept quiet for a long
time and allowed another to deal with
the properties exclusively, ordinarily
would not be entitled to an order of
injunction.
The Court will not interfere
only because the property is a very
valuable one.
We are not however,
oblivious of the fact that grant or refusal
of injunction has serious consequence
depending upon the nature thereof. The
Courts dealing with such matters must
make all endeavours to protect the
interest of the parties.
For the said
purpose, application of mind on the part
of the Courts is imperative. Contentions
raised by the parties must be
determined objectively.”
31.
The apex Court in Makers Development’s’
.It is settled law that while passing an
interim order of injunction under Order
XXXIX Rules 1 and 2 of the Code of Civil
Procedure, 1908, the Court is required to
consider three basic principles, namely,
a) prima facie
case, b) balance of
convenience and inconvenience and c)
irreparable loss and injury. In addition to
the above mentioned three basic
principles, a court, while granting
injunction
must
also
take
into
consideration the conduct of the parties.”
“11
case, supra, in para 11 held, as under:
32.
While examining the pleadings, orders and
Original Miscellaneous Petition, one comes to an
inescapable conclusion that the interim orders have
been made in order to ensure that plaintiff
if
succeeds, must enjoy the fruits of the success.
33.
The impugned order is discretionary one,
has been passed legally and rightly, warrants no
interference.
34.
and
Having glanced
the aforesaid discussion
in view of the facts of the case, we are of the
considered view that the order made by the learned
Single Judge is legal one and needs no interference.
Accordingly, the impugned order is upheld
35.
and the appeal is dismissed.
(Mansoor Ahmad Mir),
Acting Chief Justice
(Tarlok Singh Chauhan
Judge
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