Case BriefsHigh Courts

Bombay High Court: Vibha Kankanwadi, J., dismissed a writ petition filed against the order of the Sessions Judge whereby he had reversed the decision of the Magistrate who had directed the respondent herein to deposit 10% of the cheque amount.

The petitioner had filed a complaint against the respondent alleging the commission of the offence punishable under Section 138 (dishonour of cheque) of the Negotiable Instruments Act, 1881. Subsequently, the petitioner filed an application before the Magistrate praying to direct the respondent to deposit 20% of the cheque amount in view of the provisions under Section 143-A of NI Act. The Magistrate partly allowed the said application and directed the respondent to deposit 10% of the cheque amount.

The respondent challenged the said order of the Magistrate before the Sessions Judge, who reversed the order of the Magistrate. Aggrieved, the petitioner filed the instant writ petition. He contended that the order passed by the Magistrate was purely an interlocutory order as the trial was still pending, and therefore, the revision itself was barred under Section 397(2) CrPC.

At the outset, the High Court noted that the instant complaint was filed by the petitioner before Section 143-A came into force. Relying on G.J. Raja v. Tejraj Surana, 2019 SCC OnLine SC 989, reiterated that the operation of the said section is only prospective, i.e., it does not apply to the complaints filed before the section came into force. Thus, the High Court held that the provision under which the petitioner was seeking relief (i.e., under Section 143-A) was in fact not available to him, as the complaint was filed in the year 2017, however, Section 143-A was inserted in the statute book with effect from 1-9-2018.

The High Court then considered the submissions regarding the order passed by the Magistrate being interlocutory in nature and therefore not being amenable to revision by Sessions Judge. The Court relied on the decisions in Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551 and V.C. Shukla v. State, 1980 Supp SCC 92, and restated that in order that an order would be “interlocutory order”, it will have to be seen as to whether the rights of a person are affected.

In the instant case, the High Court held that, “Magistrate applied that provision of law which was not all applicable to the case in hand before him, therefore, definitely it had affected the right of the accused. Consequently, it cannot be said that, the order which was passed by the learned Magistrate was purely “interlocutory order” as contemplated under Section 397(2) CrPC.” Therefore, the Sessions Judge was justified in setting aside the said order by exercising his power under Section 397(1) of CrPC.

Resultantly, the instant writ petition was dismissed. [Hitendra v. Shankar, 2019 SCC OnLine Bom 5644, decided on 11-12-2019]

Case BriefsForeign Courts

Court of Appeal for the Democratic Socialist Republic of Sri Lanka: The Bench of M.M.A. Gaffoor, J. dismissed an appeal against an order rejecting an intervention application in a suit for partition, holding that the same was statutorily barred and because the impugned order was merely an interlocutory order.

Appellant herein was a plaintiff in a partition suit filed in the District Court of Kurunegala and have given evidence before the learned District Judge in the trial. Since the respondent-defendant contested the suit only on the basis of appellant-plaintiffs evidence, the case concluded and a final decree was issued. Thereafter, appellant-plaintiff filed an application for intervention under Section 328 of the Civil Procedure Code, 1890 in order to file their objections to dispossession. After an inquiry, the learned District Judge dismissed the said petition of the appellant-plaintiff. Aggrieved thereby, the instant appeal was filed.

Counsel for the respondent-defendant Mr Gayanga Wijethunga submitted that the instant appeal was not maintainable on the following grounds:

  • There is no right of appeal as the impugned order was not a final order but only an interlocutory order.
  • In any event, there is no right of appeal as Section 329 of the Code bars an appeal from an order made under Section 328 of Code.

At the outset, the Court held that the impugned order was an interlocutory order in terms of Section 754(2) of the Civil Procedure Code. Reliance in this regard was placed on Senanayake v. Jayantha, SC Appeal No. 41/15 and SC CHC 37/08, where it was held that if an order finally disposes of the matter in dispute, it is a final order but if the nature of order is such that it allows the action to go on, then it is an interlocutory order. Further, it was opined that the effect of an order under Section 328 is subject to the same conditions of appeal. As such, denial of a right of appeal is embodied in Section 329 of the Code itself.

In view of the above, the appeal was dismissed.[Wannahaka Mudiyanselage Heen Amma v. Wijesingha Mudiyanselage Punchi Banda Wanaduragala, C.A. 445/97 (F), decided on 05-04-2019]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of B.R. Gavai and M.S. Karnik, JJ. dismissed a petition filed against the order of the Arbitrator whereby petitioner’s application challenging the arbitration proceedings was rejected.

In view of the agreement between the parties, arbitration proceedings were commenced with one R.S. Bhandurge as the sole arbitrator. However, after a period of one year, he discontinued and the present arbitrator came to be appointed as the sole arbitrator by the respondent. The petitioner filed an application that continuation of arbitration proceedings by the present arbitrator was not permissible in law. This application was rejected by the sole arbitrator. Aggrieved thereby, the petitioner preferred the instant petition.

The High Court perused the record and found that contentions raised on behalf of the petitioner were without substance. Reference was made to Supreme Court decision in SBP and Co. v. Patel Engineering Ltd., (2005) 8 SCC 618 wherein the Apex Court had held that once the arbitration proceedings have commenced, the parties will have to wait until the award is pronounced, unless a right of appeal is available at an earlier stage under Section 37 of the Arbitration and Conciliation Act, 1996. It was observed that the High Court while exercising power under Article 226 or 227 of the Constitution, cannot entertain any petition challenging an interlocutory order passed in arbitration proceedings. In light of the above, the petition was dismissed. [Suchitra Chavan v. Axis Bank Asset Sales Centre,2018 SCC OnLine Bom 2854, dated 10-09-2018]