IVRCL LIMITED vs. GUJARAT STATE PETROLEUM CORPORATION LIMITED
Para 17: Seen thus, though the statutory requirements, those flowing from O-XXXIX R-1 of the Civil Procedure Code for grant of ex parte injunction may not be foisted with a degree of rigidity, must be seen as guiding principles for grant of any ex parte injunction under Section 9 of the Arbitration and Conciliation Act, 1996. As is well known, R-3 of O-XXXIX of the Civil Procedure Code provides for certain safeguards before granting ex parte injunction and lays down procedure under which the court would consider such an issue. It essentially provides that the court shall in all cases, except where it appears that the object of granting injunction would be defeated by delay, before granting such an injunction, direct notice of the application to be given to the opposite party. Proviso to R-3 further requires the court before granting such an injunction, without issuing notice, to record reasons for its opinion that the object of granting injunction would be defeated by delay.
Para 18: Two things thus emerge from the above discussion. Firstly that the trial court, while granting ex parte injunction was required to consider the general principles flowing from O-XXXIX R-1 of Civil Procedure Code and while granting such injunction, by way of ex parte measure, was required to record its reasons for its opinion that the object of granting injunction would be defeated by delay.
Para 19: We have noticed that the statutory recognition of seriousness of granting ex parte injunction has been further emphasized by judicial pronouncements. In case of Morgan Stanley Fund (supra), the court culled out various principles for governing grant of ex parte injunction which would include the question whether irreparable or serious mischief will ensue the to the plaintiff, whether the refusal to ex parte injunction would involve greater injustice than the grant of it would involve, the court will also consider the time at which the plaintiff first had notice of the act complained so that the making of improper order against a party in his absence is prevented. These factors would be in addition to the consideration of general principles of prima facie case, balance of convenience and irreparable loss.
NOOTAN SARVA VIDYALAYA KELAVANI MANDAL
UNION OF INDIA
Para 10: Even otherwise, the Hon’ble Apex Court observed that Order XXXIX of the C.P.C. would not be applicable at the stage of granting interim relief in a petition under Articles 226 and 227 of the Constitution of India.