Gurjant Singh and another vs IDBI Bank Limited and others

Supratim Bhattacharya, J

Upon hearing learned counsel for the parties, we find sufficient explanations for the delay in preferring the appeal having been furnished.

Accordingly, CAN 1 of 2025 is allowed, thereby condoning the delay in preferring FMAT No. 345 of 2025.

There will be no order as to costs.

The present appeal has been preferred against an order whereby an application under Order XXXIX Rule 4 of the Code of Civil Procedure (in short “the Code”)  filed  by  the  respondent  no.  1-bank  was allowed, thereby vacating the ad interim order of injunction granted earlier on the ground of suppression of material facts, and the main application of the plaintiffs/appellants under Order XXXIX Rules 1 and 2 of the Code itself was dismissed.

Learned counsel for the appellants places reliance on the order sheet of the suit wherefrom it is evident that by a previous order, bearing Order No. 34 dated October 17, 2023, the self-same application under Order XXXIX Rule 4 had been dismissed for default since none had moved the same. Hence, the principle of Order IX Rule 9 of the Coe is applicable and in the absence of any application to restore the said vacating application, the self-same application for vacating under Order XXXIX Rule 4 of the Code could not have been revisited afresh and allowed by the learned trial Judge, after the same was dismissed for default previously.

Thus, the portion of the impugned order whereby the ad interim order of injunction was vacated, it is argued, is bad in law.

It is also submitted that the plaintiffs/appellants have taken the ground of fraud insofar as the tripartite agreement between the parties is concerned. Unless such issue is decided, the said purported agreement cannot be given effect to.

The appellants further contend that there was collusion between the respondent no.1-bank and the other respondents-developers against the appellants, insofar as the appellants/home buyers were duped by the developers by not performing their part of the development agreement with the appellants but at the same time, despite which the respondent no.1-bank went on disbursing the monthly instalments in favour of the defendant no. 1 from the plaintiffs’ account.

Learned counsel appearing for the respondent no.1-bank submits that the trial court did not have inherent jurisdiction to take up the suit in view of the arbitration clause, bearing Clause No. 18, in the agreement between the developers and the plaintiffs/appellants.

That apart, learned counsel for the respondent no. 1-bank submits that subsequently the account of the present appellants has been marked as a Non Performing Asset (NPA) and a recovery proceeding has been initiated before the Debts Recovery Tribunal, which is now pending.

Be that as it may, we find from the impugned order that the substantial portion of the same is dedicated to the application under Order XXXIX Rule 4 of the Code, which had already been dismissed previously and was no longer subsisting.

Although learned counsel for the respondent no. 1-bank points out that subsequent to the order of dismissal for default of the application under Order XXXIX Rule 4 dated October 17, 2023, the trial Court had recorded on multiple dates that the said application was fixed for hearing, those orders need not have been challenged separately, since any order passed in an already dismissed application is nothing but a nullity and do not have any force in the eye of law.

The learned Trial Judge might or might not have been justified in vacating the ad interim order on the ground of suppression otherwise; however, we desist from commenting on the merits of the said application, since the impugned order is palpably vitiated inasmuch as an application for vacating which had earlier been dismissed for default was revived without any prayer for the same and was allowed by the impugned order.

Insofar as the main application for injunction under Order XXXIX Rules 1 and 2 is concerned, the learned trial Judge did not advert to the rival contentions of the parties on merits or even assessed the materials before the trial court on the injunction application, as is clear from the reasoning in the impugned order itself.

The learned trial Jude proceeded to vacate the ad interim order of injunction on the ground of suppression of material facts and apparently, as a consequence, as recorded in the order itself, dismissed the main application for injunction under Order XXXIX Rules 1 and 2 of the Code.

However, such approach is diametrically contrary to law, since the considerations in passing an ad interim injunction order or vacating the same are entirely different than that for disposing of finally the main application for injunction on merits. In respect of an ad interim order being either granted, refused or vacated, the yardsticks are different than the final disposal of the temporary injunction application itself on merits. The court, while disposing of the main application for injunction, has to independently advert to the rival contentions of the parties and go through the materials on record before it for adjudicating the same. The disposal of a temporary injunction application has to be on its own merits and not a mere consequence of vacating an ad interim order under Order XXXIX Rule 4 of the Code of Civil Procedure.

Such an exercise is completely different and separate from the considerations applied to an ad interim order. Thus, the learned trial Judge erred in law in disposing of the main injunction application as a mere consequence of vacating of the ad interim order without independently deciding the injunction application on merits.

Accordingly, FMAT No. 345 of 2025 is admitted and allowed, thereby setting aside the impugned order, bearing Order No. 42 dated April 8, 2025 passed by the learned Judge, Fifth Bench, City Civil Court at Calcutta in Title Suit No. 1063 of 2020 and directing the learned trial Judge to rehear and dispose of the main injunction application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure independently on its own merits as expeditiously as possible, preferably within six weeks from the date of communication of this order to the learned trial Judge.

Consequentially, CAN 2 of 2025 is also dismissed.

There will be no order as to costs.

Urgent certified copy, if applied for, be given to the parties on their usual undertaking.