Aditya Constructions Pvt. Ltd vs M/S. Savera Constructions ...
2021 Latest Caselaw 208 Tel

       THE HON'BLE SRI JUSTICE CHALLA KODANDA RAM

                          C.M.A. No. 10 of 2021
JUDGMENT:

Heard learned counsel for the appellant and learned counsel

for the respondents.

There is no dispute that the appellant filed this Appeal

against the ad-interim order made on 20.06.2020 in A.O.P.No. 3 of

2020 on the file of the XV Additional District Judge, R.R. District at

Kukatpally, initially, for a period of six days which was extended

from time to time. The appellant, who is the 1st respondent in the

said A.O.P. had entered appearance on 28.09.2020 by filing a

counter-affidavit, thereafter, the matter was adjourned four times

and finally, it was heard in part on 30.11.2020 and arguments on

behalf of the appellant were completed on 04.01.2021. The 2nd

respondent in the present Appeal is to be heard and the matter

was in fact listed for the said purpose on 20.01.2021 and

thereafter, now the case stands posted to 03.02.2021.

Though learned counsel for the appellant, placing reliance

on the judgments reported in ICICI Bank Limited v. IVRL

Limited1, East India Udyog Ltd. v. Maytas Infra Ltd.2,

Felguera Gruas India Pvt. Ltd. v. R.V.R. Projects Pvt. Ltd.3,

Deepak Mittal v. Geeta Sharma4, Ms. Bilasraika Sponge Iron

Pvt. Ltd. v. M/s Devi Trading Company5, Gulf Oil Corporation

v. Singareni Colonies6, Sati Oil Udyog v. Avanti Projects and

Infrastructure Ltd.7, Aventis Pasteur S.A. v.Cadila

AIR 2015 Hyd 179

AIR 2015 AP 118

AIR 2016 AP 107

2017 SCC Online DEL 10365

2011(4) ALT 297 (DB)

2008(3) ALT 631 (DB)

2009 SCC Online GAU 85

Pharmaceuticals Ltd.8, Perin Hoshang Davierwalla v. Kobad

Dorabji Davierwalla9, A. Venkatasubbaiah Naidu v.

S.Chellappan10, Zilla Parishad, Budaun v. Brahma Rishi

Sharma11, Innovative Pharma Sergicals v. Pigeon Medical

Devices Pvt. Ltd.12, Symphony Services Corporation v. Sudeep

Bhattacharjee13, L. Sudasrshan Rao v. Evershine Builders

Pvt. Ltd.14, Fuerst Day Lawson Limited v. Jindal Export

Limited15 and State of Orissa v. Md. Illiyas16, fervently

submits that the Court below ought not to have granted ad interim

injunction and ought to have disposed A.O.P. filed under Section 9

of the Arbitration and Conciliation Act, 1996 within 30 days in

terms of Rule 3-A of Order 39 C.P.C., this Court does not consider

it necessary to refer or advert to the judgments or to the facts of

the case in the light of the fact that the matter was part-heard.

Though the statutory mandate for disposal of the case is within 30

days, this Court can take judicial notice of the constraints /

limitations imposed on account of COVID-19. The learned counsel

had copiously drawn attention to various terms of the agreement

and the alleged prejudice that is being caused to the appellant,

however, considering the fact that what has been challenged before

this Court is only an ad interim order made and if this Court has

to give a finding with respect to the prejudice that is likely to be

caused or otherwise, then it would become necessary to deal with

the material documents filed and the arguments that are advanced

on behalf of the respondents. The effect of the same would be that

2002 SCC Online GUJ 288

2014 SCC online BOM 534

(2000) 7 SCC 695

1969 SCC Online All 237

AIR 2004 AP 310

AIR 2004 AP 310

2012 SCC online AP 682

(2011) 8 SCC 333

(2006) 1 SCC 275

instead of acting as an appellate Court, this Court would be

passing the order in A.O.P. thereby giving findings for the first time

and expressing its opinion which is not the purport of the

observations of the Supreme Court in A. Venkatasubbaiah

Naidu's case (cited supra), wherein it is stated that when there is

inordinate delay, the appellate Court can exercise power under

Order 43 Rule 1 by entertaining the Appeal even against an ad

interim order.

In the instant case, this Court is not required to entertain

the Appeal for the reason that ad interim order was made as far

back as on 20.06.2020 and the appellant had made appearance

only on 20.09.2020 by filing counter and the docket discloses that

as a matter of fact, the learned Judge had cautiously initially

passed the order only for six days and thereafter, extended the

same from time to time for shorter periods.

In those circumstances, the Civil Miscellaneous Appal is

dismissed, however, considering the arguments advanced by the

respective parties and the likely prejudice that may be caused for

either of the parties, this Court directs the learned Judge to pass

orders by completing the hearing without further delay and

without granting any adjournments for the respective parties, as

expeditiously as possible, at any rate within four weeks from today.

No costs.

Miscellaneous Petitions, if any stand closed.

----------------------------------- CHALLA KODANDA RAM, J

01st February 2021

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