TMI Blog2005 (12) TMI 604X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 1 on account of refund of advance of Rs. 4,20,41,622/- is a secured claim and that the respondent No. 1 is entitled to be treated as a secured creditor of the present appellant and for recovery of a total sum of Rs. 5,27,62,236/- including interest and for permanent injunction restraining the present appellant from transferring, selling, alienating or encumbering the properties mentioned in schedule 'B' of the plaint. 3. The case made out by respondent No. 1 may be summed up thus: (a) By virtue of a tripartite agreement entered into between the plaintiff, the defendant No. 1 and the defendant No. 2, it was agreed that the plaintiff would supply explosives to the defendant No. 2 which they would use in its coal mines and the defendant No. 2, instead of paying direct to the plaintiff for the said explosives, supply coal in lieu thereof of equivalent monetary value to the defendant No. 1 who in its turn would supply to the plaintiff melted ammonium nitrate being the principal raw material of the plaintiff. (b) By virtue of such tripartite agreement, the defendant No. 1 used to adjust the amount receivable from the plaintiff for the price of the melted ammonium ni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n given by this Court, the learned Trial Judge fixed the matter for hearing of the main application for temporary injunction. It appears from the record that on the date fixed for hearing none appeared to press the application but the learned Trial Judge after hearing the learned advocate for the defendant No. 1/appellant disposed of the said application for temporary injunction by maintaining the earlier order of ad interim injunction. 9. Being dissatisfied, the defendant No. 1 has come up before this Court by filing the present first miscellaneous appeal. 10. Mr. Banerjee, learned Senior Advocate appearing on behalf of the appellant, has raised various questions of law in support of this appeal. 11. First, Mr. Banerjee contends that on the date fixed for hearing of the application for temporary injunction, as the plaintiff was not present to press its application but the defendant No. 1 was present to oppose the same, it was the duty of the learned Trial Judge to dismiss the application for injunction for default. Mr. Banerjee contends that as the plaintiff was absent, the learned Trial Judge could not allow the application for temporary injunction on merit. Mr. Banerjee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it and the written objection given by the appellant. Mr. Mitra submits that principles of Order 17 Rule 2 of the Code of Civil Procedure will be applicable in the present case. 16. As regards the second point raised by Mr. Banerjee, Mr. Mitra contends that there is no prohibition in law in restraining a defendant from transferring his property even if such property is situated beyond the territorial limit of the Court. Mr. Mitra submits that his client having proved a strong prima facie case to go for trial, the learned Trial Judge did not commit any illegality in restraining the defendant No. 1 from transferring its property although such property is situated beyond the territorial limit of the Court. In support of such contention Mr. Mitra relied upon the decision of the Federal Court in the case of Moolji Jaitha and Co. v. Khandesh Spinning and Weaving Mills Co. Ltd. reported in AIR 1950 FC 83. 17. As regards the last point taken by Mr. Banerjee, Mr. Mitra contends that even if a plaintiff is unable to make out a case of attachment before judgment under Order 38 Rule 5 of the Code of Civil Procedure, such fact cannot stand in the way of the learned Trial Judge in passing a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anerjee. 20. As regards the second point advanced by Mr. Banerjee, we find that the same is equally devoid of any substance. Although at one point of time this Court was of the view that no interim order of attachment before judgment can be passed in respect of property situated beyond the territorial limit of the Court, a Division Bench of this Court in the case of Balai Kumar Sarkar v. Bimal Chandra Sarkar and Ors. reported in AIR1978Cal340 has clearly held that the Court by taking aid of Order 38 Rule 5 of the Code can attach property situated even beyond the territorial limit of the Court, subject however, to the provisions contained in Section 136 of the Code by sending such order to the appropriate Court having territorial jurisdiction for implementation. We, therefore, find that a Court dealing with even an application for attachment before judgment is competent to pass an order of attachment in respect of property situated beyond the territorial limit of the Court. It is needless to mention that if a Court can pass an order of attachment before judgment in respect of property situated beyond the territorial limit of the Court, there is no bar in restraining the defendant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .e. for declaration of the status of the plaintiff. In such a suit, the property of the defendant No, 1 cannot be the subject-matter of the suit merely because the plaintiff has prayed for permanent injunction as a consequential relief restraining the defendant No. 1 from transferring its properties particularly when it is not the case of the plaintiff that the appellant secured any of its property mentioned in schedule 'B' for the alleged transaction out of which the money has become due. Therefore, if the property of the appellant is not the subject-matter of the suit, the plaintiff by virtue of the provisions contained in Order 39 Rule 1(a) of the Code cannot get any order of injunction. Even if we assume for the sake of argument that by virtue of the declaration sought for by the plaintiff that it is a secured creditor the property of the defendants has become subject-matter of the suit because of the consequential prayer for permanent injunction, we find that the plaintiff has failed to prove a strong prima facie case in this regard relating to its prayer for such declaration. It is settled law that by getting a mere money decree the plaintiff cannot be a secured credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Films Rover International Ltd. v. Canon Film Sales Ltd. reported in 1986(3) All ER 772 in support of his contention that the real test for grant of temporary injunction is whether injustice to the defendant if the plaintiff is granted injunction but failing at the trial outweighs injustice to the plaintiff if injunction refused but the plaintiffs succeeds at the trial. We agree with the aforesaid general proposition of law but when a statute has specified the circumstances in which injunction should be granted, it should be presumed that the legislature thought that refusal of injunction in the circumstances not covered by the statute would not cause injustice to an applicant. 28. We, thus, find that in the facts of the present case there is no scope of grant of injunction even by invoking inherent power of the Court in the absence of any fraudulent intention and the Trial Court also did not grant such injunction by exercising inherent power. The Trial Court it appears granted injunction by allowing the application under Order 39 Rules 1 and 2 of the Code. 29. On considering the entire materials on records we find that the learned Trial Judge erred in law in granting the inju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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