Calcutta High Court (Appellete Side)
Abmtm Private Limited vs Pic Departmental Pvt. Ltd. & Anr on 28 June, 2021
28.06.2021
Item No. 17
Ct. No. 04
PG
F.M.A. 52 of 2017
(Via Video Conference)
r
ABMTM Private Limited
Vs.
PIC Departmental Pvt. Ltd. & Anr.
Mr. Subhasis Sengupta
Mr. Ankit Dey..............for appellant
Mr. Sengupta, learned advocate appears on
behalf of appellant in this first miscellaneous appeal.
He submits, impugned is order dated 19th August,
2016 passed by the learned Judge, 6th Bench in the
City Civil Court at Calcutta in Title Suit no. 808 of
2016 (PIC Departmental Pvt. Ltd. vs. ABMTM Pvt. Ltd.
& Anr.). Impugned order is extension of interim order
dated 29th June, 2016. His client has preferred appeal
against said order, it has been admitted and pending
for hearing. As such, this appeal from impugned
order of extension be also admitted.
He submits, a learned single Judge of this
Court in State of West Bengal & Anr. vs. Enkon
Pvt. Ltd. (C.O. 3762 of 2018) available at 2020 SCC
OnLine Cal. 2277 noticed that two Division Benches
of this Court had expressed divergent views on the
maintainability of appeal from an order of extension
of interim order, when there was appeal preferred
2
against the original order. Question was formulated
by the learned single Judge to be referred for
consideration by a larger Bench as appears at
paragraph 15 of the order, reproduced below.
"15. Whether an application under
Article 227 of the Constitution of India challenging
the original order granting interim injunction
would still be maintainable or becomes
infructuous upon the said order being extended
and the subsequent extensions are not
challenged?"
He submits, in F.M.A.T. no. 4042 of 1999
decided on 31st January, 2000 (Supratik Ghosh
and Ors. vs. Pasaring Housing Development Pvt.
Ltd.) a Division Bench in paragraphs 25 and 43 of
the judgment said as follows:
"25. The learned Advocate for the
respondents argued that since the order under
challenge has already been extended and since
the appellants have not challenged the said
extension order the appeal has become an
fructuous because the order under appeal has
merged with the order of extension. The word
"extension" when used in proper and usual
sense in accordance with a lease it means a
prolongation of the lease. See Probhas Dalut v.
Btshwanatfi Banerjee reported at
MANU/SC/0422/1989 : [1989] 2 SCR 401.
According to the Black's Law Dictionary the term
"extension" means enlargement of the main
body, above all something similar than that to
which it is attached, to lengthen or prolong. The
term "extension" means to enlarge, expand,
lengthen, prolong or to carry out further than its
original limit. I am of the view that the
submission of the learned Advocate for the
respondents does not stand the scrutiny of law.
A null and void order which is non est cannot be
got validated by an extension. Speaking
differently purported extension of a null and void
order which is non-est is also null and void and
non-est."
"43. Extension of an order implies
prolongation or expansion or lengthening of an
order which is in existence in the eye of law. If
the original order has no existence in the eye of
law or invalid, there is no scope for such
extension and the order granting extension
cannot have any effect. Mr. Roychowdhury has
also vigorously argued relying upon Sundorom's
case reported in (1992) 2 SC 479 that there is no
scope of applicability of Order XXXIX proviso to
Rule 3 in an application under section 9 of the
Arbitration Act. He has submitted that the said
Act of 1996 is governed by the unicitral rules of
Arbitration and there cannot be any applicability
of the provisions of Code of Civil Procedure, We
are unable to accept the said contention since
section 9 of the said Act of 1996 itself embodies
that the Court shall have same powers for
making orders as it has for the purpose of, and
in relation to, any proceedings before it."
Subsequently, in F.M.A.T. 1102 of 2017 decided on
30th April, 2018 (Siddharth Gupta vs. Somdeo
Gupta & Others) another Division Bench said as
follows:
"We are informed that the said ad
interim order of injunction was extended from time
to time by the learned Trial Judge and the said ad
interim order of injunction is still operating.
However, the orders extending the ad interim order
of injunction have not been challenged by any of
the parties before this Court. Since the ad interim
order of injunction passed on 18th September,
2017, which is impugned in this appeal, lost its
force after October 2017, no useful purpose will be
served by deciding the appeal on merits at this
stage. In fact, the appeal has now become
infructuous in view of the subsequent extension
granted by the learned Trial Judge."
On perusal of the judgments delivered by
said Division Benches of this Court, we find that
Supratik Ghosh (supra) was not considered in
Siddharth Gupta (supra). What we do have is
divergent views expressed by two Division Benches of
this Court. As such one of the requirements of
reference to a Full Bench arose on the divergence of
views. Rule 2 in chapter VII of the Appellate Side
Rules requires stating the point of difference. We state
the following question as the point to be referred to a
Full Bench.
"When appeal from order of injunction, limited
by time, is pending for hearing would a separate
appeal lie from subsequent order(s) of extension
thereof in light of divergent views expressed in
Supratik Ghosh (supra) and Siddharth Gupta
(supra)?
Place the file before the Hon'ble Acting Chief
Justice for appropriate order on constitution of the
Full Bench. Upon the reference being answered, the
appeal be thereafter listed for admission.
(Arindam Sinha, J.)
(Biswajit Basu, J.)
