The High Court allowed an appeal against an order granting a temporary mandatory injunction to return a damaged container. The Court found the injunction unsustainable as the trial judge failed to record findings on irreparable injury or custody.
The impugned judgment order dated 12th September 2019 is quashed and set aside. I.A.No.1 is rejected.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF FEBRUARY, 2021 PRESENT
THE HON’BLE MR.ABHAY S. OKA, CHIEF JUSTICE
AND
THE HON’BLE MR.JUSTICE SACHIN SHANKAR MAGADUM
COMAP NO.17 OF 2019
BETWEEN:
1 . RAJANI KULKARNI AGED 44 YEARS, A-42, DEVARAJ URS TRUCKS TERMINALS OPPOSITE KANTEERAVA STUDIOS YESHWANTHPUR BANGALORE - 22
2 . OCEANUS TRANSPORTS NO. 12, GRASS VILLA 1ST MAIN, BEML TOWNSHIP ROAD GM PALYA, NEW THIPPASANDRA BANGALORE - 560 075
3 . SILVER BAY SHIPPING NO. 8/2, BEML, TOWN SHIP RAJKUMAR ROAD, NEW THIPPASANDRA BANGALORE - 560 075
4 . M/S. SOLAR CARGO AND CLEARING PRIVATE LIMITED A-42, DEVARAJ URS TRUCKS TERMINALS OPPOSITE KANTEERAVA STUDIOS YESHWANTHPUR BANGALORE - 560 022
5 . KMK SHIPPING AND CELARING PRIVATE LIMITED OLD NO.76, NEW NO.153 4TH FLOOR, THAMBU CHETTY STREET CHENNAI - 600 001
6 . EASYWAY TRUCKS PRIVATE LIMITED NEW NO.192, OLD NO.237 2ND FLOOR, THAMBUCHETTY STREET MANNADY, CHENNAI - 600 001
... APPELLANTS
(BY SMT. REVATHY ADINATH NARDE, ADVOCATE) AND: M/S. DIAAMOND GRANITES NO. 867/4A, SMUDUGANDA PALLI HOSUR TALUK DENKANIKOTA ROAD TAMILNADU - 635 114 CAMP: BANGALORE REPRESENTED BY ITS AUTHORIZED AGENT MR. PRATEEK AJMERA AGED ABOUT 32 YEARS
... RESPONDENT
(BY SHRI. A. MAHESH CHOWDARY, ADVOCATE)
THIS APPEAL IS FILED UNDER SECTION 13(A) OF THE COMMERCIAL COURTS ACT 2015, PRAYING TO SET ASIDE THE ORDER PASSED BY THE HON'BLE TRAIL COURT DATED 12.09.2019 PASSED ON I.A.NO.1, IN COM.O.S.NO.94/2019 ON THE FILE OF LXXXII ADDITIONAL CITY CIIVIL AND SESSIONS JUDGE, COMMERCIAL COURT, BANGALORE CITY (CCH.NO-83) PRODUCED AND MARKED AS ANNEXURE-A AND ETC.
THIS APPEAL COMING ON FOR DICTATING JUDGMENT THIS DAY, THROUGH VIDEO CONFERENCING, CHIEF JUSTICE DELIVERED THE FOLLOWING:
JUDGMENT
By this appeal preferred under sub-section (1A) of Section 13 of the Commercial Courts Act, 2015, the appellants who are the original defendants have taken an exception to the order of temporary mandatory injunction dated 12th September 2019 passed by the learned Judge of the Commercial Court.
By the said order, the learned Trial Judge has directed the first to third appellants to return Container No.MRKU6787818 to the Shipping Liner within a period of three days from the date of the said order.
defendants to return and deliver to the plaintiff all materials pertaining to the containers such as, delivery note, materials, customs documents, containers and all relevant documents pertaining to shipping transaction assigned by plaintiff. There is also a prayer to return and deliver the defective container.
repeatedly kept on asking for payment of money. The plaintiff had booked a shipping consignment carrying nine containers for various sizes of granite stones from Larvik Norway on 9th December 2018 to be delivered at Kattupalli, Chennai on 21st January 2019 to a Liner. The cargo was delivered at Kattupalli, Chennai. It is alleged that as the fourth defendant denied to accept the work of transporting the cargo from Kattupalli to plaintiff's location, the first defendant suggested the name of the third defendant. The said suggestion was accepted by the plaintiff. Accordingly, a quotation was invited from the third defendant. The quotation was for transportation and custom clearance of nine containers. There was a meeting between the plaintiff, first defendant and one Ms. Kalyani, a representative of the third defendant. It is pleaded that the third defendant in turn engaged the fifth defendant to complete the formalities associated with the Customs Office for clearing the material. According to the case of the plaintiff, the fifth defendant cleared the goods as per the requirement and received the delivery order. It is alleged that the first defendant, without informing the plaintiff, collected the delivery order from the fifth defendant and kept it in her custody and did
not release the goods from the Maersk Line India Private Limited ('the Liner').
containers were delivered as the Liner refused to take delivery of the ninth container which was damaged. Thereafter, again there is a reference made to the emails exchanged between the parties. It is contended that the Liner repeatedly called for payment of its dues. Therefore, the prayer which was pressed into service was of return of the said ninth container. I.A. was made in the said suit directing the first to fourth defendants and the sixth defendant to return the container No.MRKU6787818. It is this application which has been allowed by granting temporary mandatory injunction.
appropriate steps to return the defective container to the plaintiff.
We have perused the impugned judgment and order and other documents on record.
1 2019 SCC Online SC 467
2 (2004)4 SCC 697
"15. In one of the earliest cases in Rasul Karim & Anr. v. Pirubhai Amirbhai, Beaman, J. was of the view that the courts in India have no power to issue a temporary injunction in a mandatory form but Shah, J. who constituted a bench in that case did not agree with Beaman, J. in this view. However, in a later Division Bench judgment in Champsey Bhimji & Co. v. The Jamna Flour Mills Co. Ltd., two learned Judges of the Bombay High Court took a different view from Beaman, J. and this view is now the prevailing view in the Bombay High Court. In M. Kandas- wami Chetty V.P. Subramania Chetty, a Division Bench of the Madras High Court held that courts in India have the power by virtue of Order XXXIX Rule 2 of
3 (1990) 2 SCC 117
the Code of Civil Procedure to issue temporary injunctions in a mandatory form and differed from Beaman J.'s view accepting the view in Champsey Bhimji & Co. v. Jamna Flour Mills Co. (supra). In Israil v. Shamser Rahman, it was held that the High Court was competent to issue an interim injunction in a mandatory form. It was further held in this case that in granting an interim injunction what the Court had to determine was whether there was a fair and substantial question to be decided as to what the rights of the parties were and whether the nature and difficulty of the questions was such that it was proper that the injunction should be granted until the time for deciding them should arrive. It was further held that the Court should consider as to where the balance of convenience lie and whether it is desirable that the status quo should be maintained. While accepting that it is not possible to say that in no circumstances will the Courts in India have any jurisdiction to issue an ad interim injunction of a mandatory character, in Nandan Pictures Ltd. v. Art Pictures Ltd. & Ors., a Division Bench was of the view that if the mandatory injunction is granted at all on an interlocutory application it is granted only to restore the status quo and not granted to establish a new state of things differing from the state which existed at the date when the suit was instituted.
16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the
party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are:
(1) The plaintiff has a strong case for Trail. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.
(2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.
(3) The balance of convenience is in favour of the one seeking such relief.
17. Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the Court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive or complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion."
(emphasis added)
learned Trial Judge could not have granted temporary mandatory injunction without recording a clear finding that the plaintiff will suffer an irreparable injury which cannot be compensated in terms of money. Taking the facts as pleaded in the plaint to be correct, it is clear that the loss which may be caused to the plaintiff by withholding the container can always be compensated in terms of money.
was necessary for the plaintiff to implead M/s. Annamalai Logistics. However, that was not done.
perused the decision of the Apex Court in the case of Deoraj
(supra) under Article 226 of the Constitution of India.
law laid down in the case of Dorab Cawasji Warden's (supra) . Hence, both the decisions would not help the learned counsel appearing for the plaintiff.
the following order:
(i) The impugned judgment order dated 12th September 2019 passed on I.A.No.1 in Com.OS.No.94/2019 is hereby quashed and set aside;
(ii) I.A.No.1 filed before the Trial Court stands rejected;
(iii) The appeal is allowed on the above terms with no order as to costs.
Sd/CHIEF JUSTICE
Sd/JUDGE
*alb/-.
2 issues framed by the court
Whether the High Court can interfere with the order granting a temporary mandatory injunction for returning a damaged container.
Whether the conditions for granting a temporary mandatory injunction under the Commercial Courts Act are satisfied.
Colour shows how this judgement treated each authority
Hammad Ahmed vs Abdul MajeedReferred¶10
Hammad Ahmed vs Abdul Majeed
Deoraj vs State of Maharashtra and othersReferred¶10
Deoraj vs State of Maharashtra and others
Dorab Cawasji Warden vs Coomi Sorab Warden and othersDistinguished¶12
Dorab Cawasji Warden vs Coomi Sorab Warden and others
1 provisions across 1 enactments
Rajani Kulkarni
Oceanus Transports
Silver Bay Shipping
M/s. Solar Cargo and Clearing Private Limited
KMK Shipping and Clearing Private Limited
Easyway Trucks Private Limited
Abhay S. Oka
Sachin Shankar Magadum
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
