CIVIL APPELLATE JURISDICTION v. Union of India & Ors.

land licenced to the plaintiff, on the basis of the existing market value would amount to treating the plaintiff as a fresh licensee for the purpose of said Policy of 2022 and not as an existing license. viii. It is the further case of the plaintiff that the plaintiff has developed the land by setting up a plant for manufacturing of PSC Sleepers and the value of the said land has thus increased only due to the build-out executed by the plaintiff. It is the plaintiff’s case that the defendants have refused to accept the license fees for the period April 01, 2023 to March 31, 2025 on the ground of enhancement of license fees in terms of the demand notices dated March 28, 2024 and June 20, 2024. ix. The plaintiff has pleaded that the plaintiff is ready and willing to pay the license fees in respect of the said land for the period 2024-2025 upon enhancement thereof @ 7% in terms of the extant Policy of 2005. x. The plaintiff has further pleaded that the defendants have sought to impose license fees in terms of the said Policy of 2022 based on the fresh market value of the land and the defendant nos. 1 and 2 are threatening to terminate the License Agreement subsisting in favour of the plaintiff. Feeling aggrieved by such action of the defendants, the plaintiff instituted the suit being T.S (COM) No. 8 of 2025 praying inter alia for the following reliefs:- a) A declaration that the plaintiff‟s license in respect of the admeasuring 4.31 acres vide DRM/HWH Plan No. 139 of 2004 at Mouza Ramrampur, J.L. No. 79, District – Birbhum, West Bengal, India, is governed by the defendant no. 3‟s Master Circular/letter bearing no. 2005/LML/18/8 dated 10.02.2005, being Annexure „P4‟ hereto, and license fee thereunder is to be calculated for that of a Private Siding; b) A decree adjudging the said demand notices dated 28.03.2024 and

20.06.2024, being Annexures „P8‟ and „P9‟ hereto, as well as the letters dated 20.01.2025 and 24.01.2025, forming part of Annexure „P15‟ and „P16‟ hereto, all issued by the defendant no. 2 as void, and have the same ordered to be delivered up and cancelled; c) Decree for a sum of Rs. 13,36,331/- (Thirteen Lakh Thirty Six Thousand Three Hundred and Thirty One Only) against the defendant nos. 1 and 2 as per paragraph 28 hereinabove; d) A perpetual injunction restraining the defendant nos. 1 or 2, and each of them, their men, servants, agents or assigns from terminating the License Agreement dated 23.09.2004, being Annexure „P2‟ hereto, subsisting in favour of the plaintiff; e) A perpetual injunction restraining the defendant nos. 1 or 2, and each of them, their men, servants, agents or assigns, from giving any effect and/or further effect to the purported demand notices dated 28.03.2024 and 20.06.2024, being Annexures „P8‟ and „P9‟ hereto, and/or the purported letters dated 20.01.2025 and 24.01.2025, forming part of Annexures „P15‟ and „P16‟ hereto; f) A mandatory injunction, compelling the defendant nos. 1 and 2 to accept the land license fees in respect of the said land being land admeasuring

4.31 acres vide DRM/HWH Plan No. 139 of 2004 at Mouza Ramrampur, J.L. No. 79, District- Birbhum, West Bengal, India at the rate of Rs. 12,54,657/- (Rupees Twelve Lakh Fifty Four Thousand Six Hundred and Fifty Seven Only) for 2023-24 and thereafter, an annual increment of 7% as per the 2005 Policy;

4. Having instituted the suit as aforesaid, the plaintiff also moved an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 (hereafter “the Code”) praying inter alia for the following orders:- a. Temporary injunction(s) restraining the defendant nos. 1 and 2, and each of them, their men, servants, agents or assigns from terminating the License Agreement dated 23.09.2004, being Annexure „P2‟ hereto, subsisting in favour of the plaintiff; b. Temporary injunction(s) restraining the defendant nos. 1 and 2, and each of them, their men, servants, agents or assigns, from giving any effect and/or further effect to the purported demand notices dated 28.03.2024 and

20.06.2024, being Annexures „P8‟ and „P9‟ hereto, and/or the purported letters dated 20.01.2025 and 24.01.2025, forming part of Anexures „P15‟ and „P16‟ hereto; c. Temporary injunction(s) compelling the defendant nos. 1 and 2 to accept the land license fees in respect of the said land being land admeasuring 4.31 acres vide DRM/HWH Plan No. 139 of 2004 at Mouza Ramrampur, J.L. No. 79, District – Birbhum, West Bengal, India at the rate of Rs. 12,54,657/- (Rupees Twelve Lakh Fifty Four Thousand Six Hundred and Fifty Seven Only) for 2023- 24 and thereafter, an annual increment of 7% as per the 2005 Policy; 5. The plaintiff pressed for ex-parte ad interim order of injunction before the learned Commercial Court at Rajarhat which was refused by an order dated April 7, 2025 by observing as follows:- “The plaintiff has filed the instant suit praying for leave under Section 80(2) of the CPC contending that due to urgency to move an ex-parte ad- interim injunction application it could not serve a pre-suit two months‟ notice under Section 80 of the CPC. In view of the urgency substantiated by the submissions of the learned Advocate for the plaintiff, the leave under Section 80(2) of the CPC is granted. Accordingly, the plaintiff is permitted to institute this suit without serving any notice is required under Section 80(1) of the CPC. Now the injunction application filed on behalf of the plaintiff/petitioner is taken up for hearing and passing necessary order. Heard the learned Advocate for the plaintiff/petitioner. Perused the plaint, the injunction petition, the annexure thereto and the materials on record. Upon careful perusal of the plaint, the injunction petition, the annexures attached thereto, and the materials on record, it is observed that the plaintiff/petitioner seeks an ad-interim injunction to prevent the respondents/defendants from proceeding with certain actions alleged to be detrimental to the plaintiff‟s rights. At this stage, the Court is not inclined to entertain the injunction petition on the ground that the respondents/defendants are a Government Body and as there is a clear embargo in Section 80(2) of the CPC which provides that the Court shall not grant relief in the suit, without interim or otherwise except after giving to the Government or Public Officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit. As such, there is no scope of passing any ex-parte as- interim injunction order at this stage. In the light of the above, this Court is not inclined to pass an ad-interim order without hearing the respondents. Consequently, the application for an interim injunction under Order 39, Rules 1 and 2 of the Code of Civil Procedure filed by the plaintiff/petitioner is hereby refused at this stage. In view of the urgency of the relief sought, there should be immediate issuance of notice and immediate service upon the defendants/respondents by service through Court and e-mail. Accordingly, issue notice upon the defendants/respondents directing to show-cause by Friday (11.04.2025) subject to receipt of notice as to why temporary injunction order as prayed for shall not be granted. The defendant nos. 1 & 2 are required to be served by hard copy of notice and e-mail and the defendant no. 3 should also be served similarly. However, if the service upon the defendant no. 3 by hard copy is not complete by the date fixed it would be sufficient for the time being if the defendant no. 3 is served by e-mail only.”

6. While rejecting the plaintiff’s prayer for ex-parte ad interim order of injunction, the defendants were also issued notice with a direction to show cause as to why temporary injunction as prayed for would not be granted. April 11, 2025 was fixed as the next date. On April 11, 2025 the defendants entered appearance and sought for time to file their written objection. The plaintiff on the other hand pressed for hearing of the injunction application. The defendants’ prayer for time was allowed and the injunction petition was not heard.

7. Feeling aggrieved by the aforesaid two orders dated April 07, 2025 and April 11, 2025, the plaintiff has approached us by way of the instant appeals.

8. Since the parties are at the interim stage of the suit and all the papers which were there before the learned Court below are here before us as well, we decided to hear out the appeals themselves by consent of the parties.

9. Mr. Chakraborty learned Additional Solicitor General representing the respondents at the very outset raised a point of maintainability of the appeals. As a point of maintainability of the appeals was raised by the learned Additional Solicitor General, we proposed to hear him first before hearing Mr. Mitra, learned Senior Advocate appearing for the appellant.

10. The learned Additional Solicitor General submitted that since the appeals assailed orders passed by the learned Commercial Court on an application under Order 39 Rules 1 and 2 of the Code therefore, the same required to be admitted under the provisions of Order 41 Rule 11 of the Code. The learned Additional Solicitor General invited our attention to Rule 17 of Chapter V of the Appellate Side Rules, 1966 and submitted that any appeal against an order other than those mentioned in the said Rule would require to be first admitted under Order 41 Rule 11 of the Code and until such admission is effected no order can be passed on the merits of the two appeals.

11. He then took us through Section 13 of the Commercial Courts Act, 2015 (hereafter the said Act of 2015) and submitted that in terms of the said provision, appeals could be preferred only against such orders as had been enumerated under Order 43 of the Code as amended by the said Act, 2015. In support of his contention he relied on a judgment of this Court in Abu Taher vs. Mossammat Margina Bibi1.

12. Mr. Chakraborty further submitted that there is no cause of action for the subject suit inasmuch as neither any notice of termination of the contract has been issued nor anything coercive has been done as yet. It was submitted that a mere notice of demand cannot constitute a cause of action for the suit.

13. The learned Additional Solicitor General then contended that the subject suit in effect assails the Master Circular of 2022 (i.e. the said Policy of 2022) issued by the Railways and that since the said Master Circular has been issued in terms of the Railways Boards Act, 1905 therefore any challenge to 1 (2003) 3 CHN 326 any act done under such Master Circular must be made before the Constitutional Court i.e. this Court under Article 226 of the Constitution of India in terms of the provision of Article 228 of the Constitution of India read with Order 27A of the Code.

14. It was further submitted that the demand notices that have been impugned were issued on March 28, 2024, June 20, 2024 and January 24, 2025 but the suit has been instituted only in April 2025 which would reveal that the matter is not so urgent that the Court should pass ex-parte ad interim order of injunction.

15. The learned Additional Solicitor General then referred to Section 41 of the Specific Relief Act and submitted that the conduct of the parties is a relevant factor in granting or refusing to grant injunction. It was further submitted that in the instant case it is evident that the plaintiff has made a delayed approach to Court and as such on the ground of delay alone injunction ought not to have been granted. In support of his submission the learned Additional Solicitor General relied on the judgment of the Hon’ble Supreme Court in the case of Mandali Ranganna & Ors. vs. T. Ramachandra & Ors.2. Mr. Chakraborty then relied on the judgment of the Hon’ble Supreme Court in the case of Shiv Kumar Chadha vs. Municipal Corporation of Delhi & Ors.3 and submitted that in all cases where a prayer for ex-parte ad interim order of injunction is made a case of urgency must be made and established. It was submitted that such case is not made out here.