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Cause of action
Or.7 Rule 11 C.P.C. – Rejection of plaintas the cause of action was ceased to exists – mother and son filed a suit for declaration and injunction against the her husband etc., – in divorce proceedings the high court order to pay Rs.4 lakhs to the mother and in turn she has to deliver the possession of plaint schedule properties – mother complied the high court order after receiving 4 lakhs from her husband and filed an application to delete her name in the suit – once her name was deleted , the defendant filed an application under Or.7 Rule 11 C.P.C. as there is no cause of action remains – Trial court dismissed the application but High court allowed the same – Apex court held that the high court correctly allowed the rejection petition as the son alone can not maintain any cause of action against his father etc., and dismissed the appeal = Soumik Sil … Appellant vs. Subhas Chandra Sil … Respondent= 2014 (March. Part ) judis.nic.in/supremecourt/filename=41337
Or.7 Rule 11 C.P.C. – Rejection of plaint as the cause of action was ceased to exists – mother and son filed a suit for declaration and injunction against the her husband etc., – in divorce proceedings the high court order to pay Rs.4 lakhs to the mother and in turn she has to deliver the … Continue reading
Code of Civil Procedure, 1908-Order XXXIX Rules 1 and 2-Interim Injunction-Contractual transaction-Money advanced to second party and third party secured the loan by hypothecation and charge-Notice by lender to the securing party seeking repayment of the amount-Suit by securing party against the lender for mandatory injunction and application for interim injunction-Claim of lender before Debt Recovery Tribunal-Interim injunction granted and execution of any order by Tribunal restrained-Held: In the facts and circumstances of the case, the court below could not exercise its discretion to grant any interim injunction-Injunction against enforcement of orders of Tribunal also not correct-Such injunctions against the Tribunal having jurisdiction to pass such orders cannot normally be granted unless it is a case of fraud or the existence of some such vitiating factor is established or prima facie made out. Appellant-defendant No. 1 issued a notice to respondent No. 1 – plaintiff and defendant No. 2, seeking repayment of the amounts advanced by it to defendant No. 2, the repayment of which was secured by hypothecation and charge created by the plaintiff. Pursuant thereto respondent No. 1 – plaintiff filed a suit against defendant Nos. 1 and 2 for mandatory injunction restraining the defendants from interfering with certain capacitor banks systems allegedly supplied by the plaintiff and installed at various substations of Transmission Corporation of Andhra Pradesh. Plaintiff also filed application for interim injunction. Trial Court granted interim injunction. In the meanwhile appellant filed its claim for recovery of the amounts due, before Debts Recovery Tribunal. It also filed application for vacating the interim order and the same was vacated by Single Judge of High Court. Plaintiff’s appeal thereagainst was allowed by Division Bench of High Court on the ground that since the suit was filed earlier to the claim before Debt Recovery Tribunal, the court was competent to entertain the suit and granted interim injunction. It permitted the proceedings before the Tribunal, but restrained the execution of any order that might be passed by the Tribunal. Hence the present appeal. Citation: 2006(8 )Suppl.SCR698 ,2007(1 )SCC106 ,2006(11 )SCALE585 ,2006(10 )JT366 Allowing the appeal, the Court HELD: 1. On the facts and in the circumstances of the case, the court is prima facie satisfied that this is not a fit case for exercise of discretion by the court to grant any interim injunction as sought for by the plaintiff. Division Bench has not properly adverted to or considered the question whether in the nature of the pleadings in the case and the nature of the relief claimed in the suit, an order of injunction as the one granted by it should be granted. The Division Bench did not ask itself the question whether it was open to it on the facts and in the circumstances of the case, to issue an order of injunction restraining one of the contracting parties from enforcing as against the other contracting party, the obligations arising out of that contract. The Division Bench also did not ask itself the question whether the plaintiff had made out a prima facie case for the grant of what it called an interim mandatory injunction – though it appears to this court to be a case of prohibitory injunction – and whether the balance of convenience is in favour of the grant of an interim order of injunction. [702-B-F] 2. Division Bench has clearly acted illegally in purporting to pass an interim order of injunction restraining the enforcement of any order that may be passed by the Debts Recovery Tribunal. The Debts Recovery Tribunal is a special forum created by a special enactment for the purpose of enforcement of special types of claims arising in favour of financial institutions. Thus, competent proceedings are instituted before such a Tribunal by a financial institution seeking to enforce its claimed rights. Whatever defences the plaintiff herein may have against the claims of the first defendant before the Debts Recovery Tribunal, have to be put forward by the plaintiff before the Debts Recovery Tribunal. The mere fact that the plaintiff chose to rush to the Civil Court on receipt of a notice from the first defendant in an attempt to thwart the enforcement of the obligations it has allegedly incurred, does not justify the grant of an interim order of injunction restraining the enforcement of the rights arising out of an alleged hypothecation and a charge created by the plaintiff in favour of the first defendant. That apart, to grant an injunction restraining the enforcement of orders passed by the Tribunal having jurisdiction to pass such orders cannot normally be granted unless it is a case of fraud or the existence of some such vitiating factor is established or prima facie made out. Even then, the order of injunction as now granted could be granted only in exceptional cases. [702-F-H; 703-A-C] 3. It is open to the plaintiff to put forward all its contentions before the Debts Recovery Tribunal and if it is thought appropriate, to get the suit filed by it transferred to the Debts Recovery Tribunal to be tried as a cross suit or counter claim against the claim of the first defendant before the Debts Recovery Tribunal. [703-E-F] State Bank of India v. M/s Ranjan Chemicals Ltd. and Anr., (2006) 10 SCALE 150, referred to. K.K. Mani for the Appellant. L. Nageshwar Rao, T.G. Narayanan Nair, Nandakumar K.P. Venugopal, and E. Venukumar, K.J. John & Co. for the Respondents.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3 CASE NO.: Appeal (civil) 4728 of 2006 PETITIONER: Industrial Investment Bank of India Ltd RESPONDENT: Marshal’s Power & Telecom (I) Ltd.& Anr DATE OF JUDGMENT: 08/11/2006 BENCH: H.K. SEMA & P.K. BALASUBRAMANYAN JUDGMENT: J U D G M E N T (Arising out of SLP(C) No.2962 … Continue reading
