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PETITIONER: COTTON CORPORATION OF INDIA

       Vs.

RESPONDENT: UNITED INDUSTRIAL BANK

DATE OF JUDGMENT19/09/1983

BENCH: DESAI, D.A. BENCH: DESAI, D.A. ERADI, V. BALAKRISHNA (J)

CITATION:  1983 AIR 1272            1983 SCR  (3) 962  1983 SCC  (4) 625        1983 SCALE  (2)324  CITATOR INFO :  D          1987 SC 874  (18)

ACT:      Specific Relief  Act, 1963-S.  41(b)-Whether court  has jurisdiction to grant injunction restraining any person from instituting any  proceeding in  a court  not subordinate  to that from which injunction is sought ?

HEADNOTE:      A Branch  Manager of the respondent-Bank co-accepted 16 usance bills  of the  aggregate value  of over  Rs. 45 lakhs relating to  purchases of cotton made by a textile mill from the appellant-Corporation.  When the  usance bills  matured, the Corporation  called upon  the Bank  to make payment. The Bank filed a suit against the Corporation praying inter alia for a declaration that the co-acceptance of the usance bills by its  Branch Manager  was null and void as he did not have the requisite  authority to co-accept the bills on behalf of the Bank  and also for an interim injunction restraining the Corporation from  presenting a winding-up petition under the Companies Act,  1956. The  prayer for  injunction was turned down by  a Single  Judge of  the High Court but the same was granted by  a Division  Bench which heard the appeal against the order  of the Single Judge. The narrow question examined in this  appeal  was.  Whether  in  view  of  the  provision contained in  s. 41(b) of the Specific Relief Act, 1963, the court  will   have  jurisdiction   to  grant  an  injunction restraining any  person from instituting any proceeding in a court not  subordinate to  that from which the injunction is sought ?      Allowing the appeal, ^      HELD: From  the  language  used  in  s.  56(b)  of  the Specific  Relief   Act,  1887  (which  was  the  predecessor provision of s. 41(b) of the 1963 Act) it was clear that the court could  not stay  a proceeding  in a  court superior in hierarchy to the court from which injunction was sought; but by a process of judicial interpretation a consensus had been reached that a court could by an injunction restrain a party before it  from further  prosecuting the proceeding in other courts, superior  or inferior.  To some extent this approach had  not   only  effectively   circumvented  the   provision

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contained in  s. 56(b)  of the repealed Act but also denuded it of  its content.  The legislature  took  notice  of  this judicial interpretation  and materially altered the language of the  succeeding provision.  It manifestly  expressed  its mind by  enacting s.  41(b) in  such clear  and  unambiguous language that  an injunction  cannot be  granted to restrain any person-the  language takes  care of injunction acting in personum-from instituting or prosecuting any proceeding in a Court not  subordinate to  that  from  which  injunction  is sought. This  change in language deliberately adopted by the legislature has  to be given full effect. [970 F-H; 971 A-B, D] 963      (i) Anyone  having a right, that is a legally protected interest, complains  of its  infringement and  seeks  relief through Court  must have an unhindered, uninterrupted access to  law  courts.  Access  to  court  in  search  of  justice according to  law is  the right of a person who complains of infringement  of   his  legally  protected  interest  and  a fortiori therefore,  no other court can by its action impede access to  justice. This  principle is  deducible  from  the Constitution which  seeks to  set up  a society  governed by rule of  law. As  a  corollary  it  must  yield  to  another principle that  a superior  court can  injunct a  person  by restraining him from instituting or prosecuting a proceeding before a  subordinate court.  Save this specific carving out of the  area where  access to  justice may  be impeded by an injunction of the court, the legislature desired that courts ordinarily should  not  impede  access  to  justice  through court. This  is the equitable principle underlying s. 41(b). Accordingly, it  must receive  such interpretation  as would advance the  intendment  and  thwart  the  mischief  it  was enacted to  suppress and  to keep  the  path  of  access  to justice through court unobstructed. [971 F-H; 972 A-B]      (ii)  The   legal  system   in  our  country  envisages obtaining redressal  of a  wrong or  relief  against  unjust denial thereof  by approaching  the court  set  up  for  the purpose. If  a person  complaining of invasion of his rights is injuncted  from approaching  the court  set up  to  grant relief by  an action  brought by  the opposite  side against whom he  has a  claim and which he wanted to enforce through court, he  would  have  to  first  defend  that  action  and vindicate his  right and  thereafter, when the injunction is vacated, he  has to  approach the court for relief. In order to avoid  such multiplicity  of proceedings, the legislature enacted s. 41(b) and statutorily provided that an injunction cannot be  granted by a court with a view to restraining any person from  instituting or  prosecuting any proceeding in a court not  subordinate to  that from which the injunction is sought. [972 C-F; G]      (iii) The  contention that  s. 41  (b) is not attracted because it  deals only  with perpetual  injunction cannot be accepted. The  expression ’injunction’  in s.  41(b) is  not qualified by  an adjective and therefore it would comprehend both interim and perpetual injunction. It is true that s. 37 specifically provides  that temporary injunctions which have to continue until a specified time or until further order of the court  are regulated by the Code of Civil Procedure. But if a dichotomy is introduced by confining s. 41 to perpetual injunction only  and s.  37 read  with o.  39  C.P.C.  being confined to  temporary injunction,  an unnecessary grey area will develop.  It is  indisputable that temporary injunction is granted  during the  pendency of  the proceeding  so that while granting  final relief  the Court  is not faced with a situation that the relief becomes infructuous or that during

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the pendency  of the proceeding an unfair advantage is taken by the party in default or against whom temporary injunction is sought.  But power  to  grant  temporary  injunction  was conferred in aid of or as auxiliary to the final relief that may be  granted. If  the final  relief cannot  be granted in terms as  prayed for, temporary relief in the same terms can hardly if ever be granted. [973 C-F]      State of Orissa v. Madan Gopal Rungta, [1952] S.C.R. 28 referred to. 964      Udyog Mandir  v. Messrs.  Contessa Knit  Wear and Ors., A.I.R. [1975]  Bom. 158;  and Krishnadevi P. Gupta & Anr. v. Banwarilal Hanuman  Prasad Tibrewala, A.I.R. [1976] Bom. 233 approved.      In the  instant case  the Bank  seeks to  restrain  the Corporation by an injunction of the court from instituting a proceeding for  winding-up of the Bank. There is a clear bar in s.  41(b) against  granting this relief. The court has no jurisdiction to  grant a  perpetual injunction restraining a person  from   instituting  a  proceeding  in  a  court  not subordinate to  it as  a relief,  and therefore;  ipso facto temporary relief cannot be granted in the same terms.                               [974 B-C]      (iv) One  cannot bodily  import English  decisions into our system  to develop  a hybrid legal system and one cannot be  so   hypnotised  by   English  decisions   to   overlook legislative  changes   introduced  in   Indian  Law.   Where provisions are  in pari  materia between the English Act and the Indian  Act and where local conditions do not materially differ from the conditions in U.K., one may, keeping in view the conditions in our country, look at the view taken by the English Courts and if consistent with our jurisprudence, our social conditions  and our chalked out path in which the law must move,  one can  profitably take  help of  the decision. [975 D-E]      Cadiz Waterworks  Co. v.  Barnett, [1874-75], 19 Equity Cases 182;  Circle Restaurant  Castiglione  Co.  v.  Lavery, [1881] 18  Ch. Div. 555; and New Travellers Chambers Ltd. v. Messrs Cheese  & Green, [1894] 17 Law Times Reports 171-plea to take notice of, declined.      Buckley: Companies  Act, 14th  Edn., footnotes 7, 8 and 9, P.  524; and  Palmer’s Company  Precedents, Part II, 17th Ed. p. 45-plea to take notice of declined.      Hungerford Investment  Trust Ltd.  v. Haridas Mundhra & Ors.,[1972] 3  S.C.R. 690,  at 701; Chales Forte Investments Ltd. v.  Amanda, [1963]  2 All  E.R. 940;  Bryanston Finance Ltd. v.  De Vries,  [1976] 1  All  E.R.  25;  and  Stonegate Securities Ltd.  v. Gregory, [1980] 1 All E.R. 241; referred to.      (v) The  Court can in appropriate cases grant temporary injunction in  exercise of  its inherent  power in cases not covered by O. 39, C.P.C, But the inherent power of the Court cannot  be  invoked  to  nullify  or  stultify  a  statutory provision. While exercising inherent power, the court should not overlook  the statutory  provision  in  s.  41(b)  which clearly indicates  that injunction to restrain initiation of proceeding cannot be granted. [980 C-D]      Manoharlal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, [1962] Supp.  1 S.C.R.  450: and Padam Sen v. State of U.P.; [1961] 1 S.C.R. 884; referred to.      In the  instant case,  the appellate  judgment does not contain the  slightest reference  to the  invocation of  the inherent power  of  the  court  in  granting  the  order  of injunction now under challenge. Not only that, but the court has not  held that  the contention  of  the  Corporation  is

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frivolous or untenable or 965 the  claim  is  mala  fide.  This  becomes  clear  from  the observation of  the court that the order passed by it is not founded on the merits of the Bank’s case or lack of merit in any  claim  which  the  Corporation  may  have  against  the plaintiff-Bank and  it would  be open  to the Corporation to file a  regular suit  or summary suit against the plaintiff- Bank in  which appropriate  orders would  be passed  by  the court seized  of the  matter as and when the occasion arises for the same.           [980 D-F]      (vi) The contention that the presentation of winding-up petition coupled  with advertisement thereof in newspaper as required by  law has  certain serious  consequences  on  the status,  standing,   financial   viability   stability   and operational efficiency of the company, and where the debt is bona fide  disputed, a petition for winding-up, which is not an alternative  to the  suit to  recover the  same, may be a pressure  tactic   to  obtain   an  unfair   advantage,  and therefore, the  court must,  despite  the  provision  in  s. 41(b), spell  out a  power in appropriate cases to injunct a person  from   filing  a   winding-up  petition,  cannot  be accepted. This  contention overlooks  the various  statutors safeguards against admission, advertising and publication of winding-up petitions. There is sufficient built-in safeguard in the  provisions of the Companies Act and the Rules framed thereunder which  would save  the company  from any  adverse consequences, if a petitioner actuated by an ulterior motive presents the petition. According to rule 96 of the Companies (Court) Rules, 1959 a petition for winding-up has to come up in chambers  before the Company Judge and not in open court, and the  rule confers a discretionary power on the judge not to give  any directions  at that  stage but  merely issue  a notice to  the company  before giving  directions.  If  upon receipt of such notice the company appears and satisfies the judge  that   the  debt   is  bona   fide  disputed  or  the presentation of the petition is mala fide, or actuated by an ulterior motive,  or abuse  of the process of the court, the Judge may  decline to  admit the petition and may direct and party presenting  the winding-up petition to prove its claim by a  suit or  in any other manner. This is the jurisdiction of the  Company Court  and  it  cannot  be  restrained  from exercising the  same by  some other  court  restraining  the creditor from  presenting a  winding-up petition.  [981 B-H; 982 A; D]      National Conduits  Pvt. Ltd.  v. S.  S. Arora, [1968] 1 S.C.R, 430, referred to.      George v.  The Athimattam  Rubber Co. Ltd., A.I.R. 1964 Kerala 212, approved.      In the  instant case,  even assuming that the Appellate Bench had  in its  mind the  inherent power  of the court to grant injunction despite statutory inhibition and consistent with the view taken by the courts in England, it had then in order to  do justice  between the  parties  first  reach  an affirmative finding that the winding-up petition as and when presented by  the Corporation  would be  frivolous and would constitute an  abuse of the process of the court or would be a device  to pressurise  the Bank to submit to an unjust and dishonest  claim.   It  must   also  reach   an  affirmative conclusion that  the debtor-Bank  is sufficiently solvent to satisfy the claim as and when established. It has also 966 to record an affirmative finding that the Corporation is not seeking bona  fide to  present a petition for winding-up but

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is  actuated   by  an  ulterior  motive  in  presenting  the petition. However,  the decision  of the  Appellate Bench is conspicuously silent on these relevant points. [983 E-H; 984 A]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 7348 of 1983.      Appeal by  Special leave  from the  judgment and  order dated the  19th March,  1982 of  the Bombay  High  Court  in Appeal No.  527 of  1981 in  notice of motion No. 1156/81 in Suit No. 1508/81.      Sankar Ghose,  Miss Radha Rangaswamy and Rangaswamy for the Appellant.      A.K. Sen,  R. C.  Nag, Rameshwar Nath and A. K. Sil for the Respondents.      The Judgment of the Court was delivered by      DESAI,  J.  First  respondent  United  Industrial  Bank Limited (  Bank for  short’) having its registered office at 7, Red  Cross Place, Calcutta filed Suit No. 1508 of 1981 on the original  side of  the Bombay  High  Court  against  the appellant-The   Cotton    Corporation   of   India   Limited (’Corporation’ for  short) and one Tapan Kumar Ghosh, who at the relevant  time was the Chief Branch Manager of the Worli Branch of  the  Bank  and  defendant  No.  3-Bradbury  Mills Limited, an  existing Company  within  the  meaning  of  the Companies Act,  1956 carrying  on business  at Maulana  Azad Road, Jacob  Circle, Bombay  praying for  a declaration that the acceptance  and or co-acceptance of the bill of exchange and/or hundies  listed in  Exhibit ’K’  by second  defendant Tapan Kumar Ghosh for and on behalf of the Bank was null and void and  not binding  on the  Bank  and  calling  upon  the Corporation to deliver up to the Court the disputed bills of exchange and/or  hundies for the purpose of cancellation and for a  direction cancelling  the same. In this suit the Bank took out  a notice  of motion  No. 1156  of 1981  seeking to restrain by  an  interim  injunction  the  Corporation  from enforcing any  claim whatever in any form or from relying on or giving  effect  to  the  bills  of  exchange  or  hundies involved in the dispute for the purpose of any suit or other proceedings  including   winding-up  proceedings  under  the Companies Act,  1956 and/or the Banking Regulation Act, 1949 against the  Bank. Notice  of motion  also included a prayer for an interim injunction restraining 967 the defendants  in any manner whatsoever either endorsing or negotiating or  transferring the  said bills  of exchange or hundies and for appointment of a receiver to take custody of the bills of exchange and hundies listed in Exh. ’K’. An ex- parte ad-interim  injunction was granted as prayed for. When the notice  of motion came up for hearing, the learned judge made the following order :           "...Mr. Chagla  confines prayer  (a) only  to  the      filing of winding up petition by Defendant No. 1 and 3.      He presses  prayer (b)  in full.  Notice of  motion  as      against the  Defendant No.  1 dismissed.  The Notice of      Motion made  absolute in  terms of prayer (a) in so far      winding up is concerned as against the defendant No. 3,      so far as prayer (b) is concerned, the bills are in the      possession of  the  Ist  Defendants  and  there  is  no      question of other defendants negotiating the same.           Notice of  Motion dismissed  as regards prayer (b)      also against Defendants 2 and 3..."

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    The Bank having been dissatisfied with the rejection of the Notice  of  Motion  against  the  Corporation  preferred Appeal from  an order  No. 527  of 1981. A Division Bench of the Bombay  High Court allowed the appeal and issued interim injunction restraining  the Corporation  from  presenting  a winding up  petition, the  order being  in the same terms as made against  the 3rd defendant by the learned Single judge. The correctness  and validity  of this  order is impugned in this appeal.      As the suit is pending awaiting adjudication on merits, every attempt would be made by us to avoid any expression of opinion on  the merits  of the  suit. The few facts which we propose to  set out are for the purpose of understanding and appreciating  the   contention  only,   the  correctness  or otherwise of  the allegation  of facts  being immaterial for the present purpose.      The  Corporation   is  engaged   in  the   business  of purchasing and selling cotton to textile mills in India. The policy of  the Corporation  appears to  be  to  sell  cotton against cash  payment, but  in some cases to accommodate the textile  mills  the  sale  is  effected  on  credit  against acceptance of usance bills co-accepted by the bankers of the textile  mills   guaranteeing  payment  on  due  dates.  3rd defendant Bradbury 968 Mills Limited  is alleged  to have  purchased cotton  of the aggregate value of Rs. 45,75,000 and in payment of the price issued 16 usance bills. The 3rd defedant by its letter dated May 21,  1981 had informed the Corporation that the Bank has given  an  undertaking,  to  Government  of  Maharashtra  to monitor the  cash flow of the 3rd defendant and hence it had to operate account with that Bank only, and it requested the Corporation to  accept usance bills co-accepted by the Bank. The Corporation  asserts that the Bank through defendant No. 2 its  Chief Branch  Manager at  Worli  co-accepted  the  16 usance bills and according to the Corporation the acceptance was evidenced  by four  letters issued by the Bank. When the usance bills matured and became due for payment, the Bank of Baroda on  behalf of the Corporation called upon the Bank to make the  payment of  the amounts  covered  by  the  various usance bills. Simultaneously, the 3rd defendant was asked to direct its  bankers, the  plaintiff-bank in  this  case,  to discharge the  usance bills  and make the necessary payment. The Solicitors  of the  Bank informed  the Corporation  that they were  awaiting instruction  from the head office of the Bank  at   Calcutta.  Thereafter,   the  Solicitors  of  the Corporation served a notice dated August 5, 1981 on the Bank calling upon  it to  make the payment under the usance bills co-accepted by  the Bank  within 4  days from the receipt of the notice.  Soon thereafter  the Bank  filed a suit against the Corporation  and 2  others as  stated hereinbefore.  The main contention  of the  Bank in  the suit is that the Chief Branch  Manager  defendant  No.  2  had  not  the  requisite authority to  co-accept the  bills on behalf of the Bank and therefore, the  Bank had  incurred no  liability  under  the usance bills.  There is  some allegation  of fraud but it is not relevant for the present purpose. The suit is pending on the Original Side of the Bombay High Court.      A very  narrow question  which we propose to examine in this appeal  is : Whether in view of the provision contained in Sec.  41(b) of  the Specific  Relief Act, 1963 (’Act’ for short),  the  Court  will  have  jurisdiction  to  grant  an injunction  restraining  any  person  from  instituting  any proceeding in a court not subordinate to that from which the injunction is sought ? The contention may be elaborated thus

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: Can  a person  be restrained by an injunction of the Court from  instituting   any  proceeding  which  such  person  is otherwise entitled  to institute  in a court not subordinate to that from which the injunction is sought? In the facts of the  present  case,  the  narrow  question  is  whether  the Corporation can  be restrained by an injunction of the court from presenting a winding-up petition against the Bank ? The High Court 969 seems to  hold that the Court has such powers in view of the provisions contained  in 0.39 of the Code of Civil Procedure read with  Sec. 37  of the  Specific Relief  Act, 1963 or in exercise of  the inherent powers of the Court under Sec. 151 of the  Code of  Civil procedure. This position is seriously contested by the appellant in this appeal.      The reliefs  which the  Bank as plaintiff is seeking in the suit  filed by  it are  a declaration  that Bank  is not liable to  honour and discharge the usance bills co-accepted in its  name by  its Chief  Branch  Manager-defendant  2  as envisaged by  Sec. 34 and a further relief that the disputed bills of  exchange and hundies be delivered to the Court for cancellation and be cancelled as envisaged by Sec. 31. It is in  this   suit  that  the  Bank  has  obtained  an  interim injunction restraining  the Corporation  from  presenting  a winding-up petition against the Bank.      Part III  of the  Act  bears  the  heading  ’Preventive Relief’ and  fasciculus of sections therein included provide for injunctions  generally. Sec. 36 provides that preventive relief  is  granted  at  the  discretion  of  the  Court  by injunction, temporary  or perpetual.  Sec. 37  specifies the nature and character of temporary and perpetual injunctions. Temporary injunctions  are such  as are  to continue until a specified time, or until the further order of the Court, and they may  be granted  at  any  stage  of  a  suit,  and  are regulated by  the Code  of Civil  Procedure, 1908. Permanent injunctions can  only be  granted by  the decree made at the hearing and upon merits of the suit and thereby defendant in the suit  is perpetually  enjoined from assertion of a right or from commission of an act, which would be contrary to the rights of  the plaintiffs. Section 38 sets out situations in which the  court can  grant a  perpetual injunction  to  the plaintiff to prevent the breach of an obligation existing in its favour,  whether expressly or by implication. Sec. 38 is thus an enabling section which confers power on the court to grant perpetual  injunction in  situations and circumstances therein  enumerated.   Sec.  41   caters  to   the  opposite situation. It  provides that an injunction cannot be granted in the  situation and  circumstances therein  set  out.  The Corporation  relies  on  Sec.  41  (b)  in  support  of  its contention that  the court  had  no  jurisdiction  to  grant temporary injunction  because perpetual injunction could not have been  granted by  the Court in terms in which temporary or interim injunction was sought. Sec. 41 (b) reads as under :      "41. An injunction cannot be granted :- 970      (a)  ................      (b)  to  restrain   any  person   from  instituting  or           prosecuting  any   proceeding  in   a  court   not           subordinate to  that from  which the injunction is           sought;           ......................." The predecessor  of Sec. 41 (b), Sec. 56 (b) of the Specific Relief Act of 1887 repealed by 1963 Act read as under :      "56. Injunction cannot be granted :-

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    (a)  .....................      (b)  to stay  proceeding in  a Court not subordinate to           that from which the injunction is sought," A glance  at  the  two  provisions,  the  existing  and  the repealed would  reveal the  legislative response to judicial interpretation. Under  Sec. 56  (b) of the repealed Act, the Court was  precluded by  its injunction  to  grant  stay  of proceeding in a court not subordinate to that from which the injunction was  sought. In other words, the Court could stay by its injunction a proceeding in a court subordinate to the court granting  injunction. The  injunction granting stay of proceeding was directed to the Court and the Court has to be the Court  subordinate to  the one  granting the injunction. This is postulated on the well recognised principle that the superior  court   can  regulate   proceedings  in   a  court subordinate to it. It is implicit in this assumption and the language used  in Sec. 56 (b) that the court could not grant injunction under  Sec. 56  (b) of  the repealed  Act to stay proceeding in  a court  superior in  hierarchy to  the Court from  which   injunction  is   sought.   But   by   judicial interpretation, a  consensus was  reached that as injunction acts in  personum while  the Court  by its injunction cannot stay proceedings  in a  Court of  superior jurisdiction;  it could certainly  by an injunction restrain a party before it from further  prosecuting the proceeding in other courts may be superior  or inferior in the hierarchy of courts. To some extent this  approach not  only effectively circumvented the provision contained  in Sec.  56 of  the  repealed  Act  but denuded it  of its  content. The  Legislature took notice of this judicial interpretation and materially altered the 971 language of  the succeeding provision enacted in Sec. 41 (b) replacing Sec.  56 (b)  of the  repealed Act  while enacting Specific Relief  Act of  1963.  The  Legislature  manifestly expressed its mind by enacting Sec. 41 (b) in such clear and unambiguous language that an injunction cannot be granted to restrain any  person, the  language takes care of injunction acting in  personum, from  instituting  or  prosecuting  any proceeding in  a court  not subordinate  to that  from which injunction is  sought. Sec.  41(b) denies  to the  court the jurisdiction to  grant an  injunction restraining any person from instituting  or prosecuting  any proceeding  in a court which is  not  subordinate  to  the  court  from  which  the injunction is  sought. In  other words,  the court can still grant an injunction restraining a person from instituting or prosecuting any  proceeding in  a court which is subordinate to the  court from  which the  injunction is  sought.  As  a necessary corollary,  it would  follow  that  the  court  is precluded from granting an injunction restraining any person from instituting or prosecuting any proceeding in a court of co-ordinate  or   surerior  jurisdiction.   This  change  in language  deliberately  adopted  by  the  Legislature  after taking note  of judicial  vacillation has  to be  given full effect.      It is,  therefore, necessary  to unravel the underlying intendment of  the provision  contained in  Sec. 41  (b). It must at  once be  conceded that Sec. 41 deals with perpetual injunction and  it may  as well  be  conceded  that  it  has nothing to  do with interim or temporary injunction which as provided by  Sec. 37  are dealt  with by  the Code  of Civil Procedure. To  begin with,  it can  be said  without fear of contradiction that  anyone having  a right that is a legally protected interest  complains of  its infringement and seeks relief through  court must have an unhindered, uninterrupted access to law courts. The expression ’court’ here is used in

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its widest  amplitude comprehending every forum where relief can be  obtained in  accordance with  law. Access to justice must not  be hampered  even at the hands of judiciary. Power to  grant   injunction  vests   in  the   court  unless  the Legislature confers  specifically such  power on  some other forum. Now access to court in search of justice according to law is  the right  of a person who complains of infringement of his  legally protected  interest and a fortiori therefor, no other  court can  by its action impede access to justice. This principle  is deducible  from the   Constitution  which seeks to  set up  a society  governed by  rule of  law. As a corrolary, it  must yield  to  another  principle  that  the superior court  can injunct a person by restraining him from instituting or 972 prosecuting a  proceeding before  a subordinate  court. Save this specific  carving out  of  the  area  where  access  to justice may  be impeded  by an  injunction of the court, the Legislature desired  that the  courts ordinarily  should not impede access  to justice  through court. This appears to us to be  the  equitable  principle  underlying  sec.  41  (b). Accordingly, it  must receive  such interpretation  as would advance the  intendment, and  thwart  the  mischief  it  was enacted to  suppress, and  to keep  the path  of  access  to justice through court unobstructed.      Viewed from a slightly different angle, it would appear that the  legal system in our country envisages obtaining of redressal of  wrong or relief against unjust denial there of by approaching the court set up for the purpose and invested with power  both substantive  and procedural  to do  justice that is  to grant  relief against  invasion or  violation of legally  protected  interests  which  are  jurisprudentially called rights.  If  a  person  complaining  of  invasion  or violation of  his rights,  is injuncted from approaching the court set  up to  grant relief  by an  action brought by the opposite side  against whom  he has  a claim  and  which  he wanted to  enforce through  court, he  would have  first  to defend the  action establishing that he has a just claim and he cannot be restrained from approaching the court to obtain relief. A  person having  a legal right and complains of its violation or  infringement, can  approach the court and seek relief. When  such person  is injuncted from approaching the court,  he   has  to  vindicate  the  right  and  then  when injunction is  vacated, he  has to  approach the  court  for relief. In  other words,  he would  have to  go through  the gamut  over   again:  When  defending  against  a  claim  of injunction the  person vindicates  the claim  and  right  to enforce the same. If successful he does not get relief but a door to  court which  was bolted  in his face is opened. Why should he  be exposed  to multiplicity  of proceedings  ? In order to avoid such a situation the Legislature enacted sec. 41 (b) and statutorily provided that an injunction cannot be granted  to   restrain  any   person  from   instituting  or prosecuting any  proceeding in  a court  not subordinate  to that from  which the  injunction  is  sought.  Ordinarily  a preventive relief by way of prohibitory injunction cannot be granted by  a court  with a  view to  restraining any person from instituting  or prosecuting  any proceeding and this is subject to  one exception enacted in larger public interest, namely,  a   superior  court   can  injunct  a  person  from instituting or  prosecuting an action in a subordinate court with  a   view  to  regulating  the  proceeding  before  the subordinate courts. At any rate the court 973 is precluded  by a  statutory  provision  from  granting  an

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injunction  restraining   a  person   from  instituting   or prosecuting  a   proceeding  in   a  court   of   coordinate jurisdiction  or   superior  jurisdiction.   There   is   an unresolved  controversy   whether  a   court  can  grant  an injunction against  a person from instituting or prosecuting a proceeding  before itself  but that is not relevant in the present circumstances  and we  do not propose to enlarge the area of controversy.      Mr.  Sen,  learned  counsel  for  the  respondent-Bank, contended that  sec. 41  (b) is not at all attracted because it deals  with perpetual  injunction and  the  temporary  or interim  injunction  is  regulated  by  the  Code  of  Civil Procedure specially  so provided  in Sec.  37  of  the  Act. Expression ’injunction’  in sec.  41 (b) is not qualified by an adjective and therefore, it would comprehend both interim and perpetual  injunction. It is, however, true that Sec. 37 specifically provides  that temporary injunctions which have to continue until a specified time or until further order of the court  are regulated by the Code of Civil Procedure. But if a  dichotomy  is  introduced  by  confining  Sec.  41  to perpetual injunction only and Sec. 37 read with O. 39 of the Code  of   Civil  Procedure   being  confined  to  temporary injunction, an  unnecessary grey  area will  develop. It  is indisputable that temporary injunction is granted during the pendency of  the proceeding  so that  while  granting  final relief the  court is  not faced  with a  situation that  the relief becomes  infructuous or  that during  the pendency of the proceeding an unfair advantage is not taken by the party in default  or against  whom temporary injunction is sought. But power to grant temporary injunction was conferred in aid or as  auxiliary to the final relief that may be granted. It the final  relief cannot  be granted in terms as prayed for, temporary relief  in the  same terms  can hardly  if ever be granted.      In The  State of  Orissa v.  Madan  Gopal  Rungta(1)  a Constitution Bench  of this  Court  clearly  spelt  out  the contours within  which interim  relief can  be granted.  The Court said  that ’an  interim relief  can be granted only in aid of,  and as  ancillary to,  the main relief which may be available to  the party on final determination of his rights in a  suit or proceedings. If this be the purpose to achieve which power  to grant  temporary relief  is conferred, it is inconceivable that  where the final relief cannot be granted in the  terms sought  for because  the statute bars granting such a relief ipso facto the 974 temporary relief  of the  same nature  cannot be granted. To illustrate this point, let us take the relief which the Bank seeks in  its suit.  The prayer  is that  the Corporation be restrained by  an injunction  of the Court from presenting a winding-up petition  under the  Companies Act, 1956 or under the Banking  Regulation Act,  1949. In other words, the Bank seeks to  restrain the  Corporation by  an injunction of the court from  instituting a  proceeding for  winding-up of the Bank. There  is a  clear bar in Sec. 41 (b) against granting this relief.  The Court  has  no  jurisdiction  to  grant  a perpetual injunction restraining a person from instituting a proceeding in  a court  not subordinate  to it, as a relief, ipso facto  temporary relief  cannot be  granted in the same terms.      The interim  relief can  obviously be  not granted also because the  object behind  granting interim  relief  is  to maintain status  quo ante  so that  the final  relief can be appropriately moulded  without the  party’s  position  being altered during the pendency of the proceedings.

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    Mr.  Sen,   however,  urged   that  even   though   the Legislature has  materially  altered  the  language  of  the corresponding provision  in sec.  56(b) of  1877  Act  while enacting Sec.  41(b), yet  the change in language would have no impact  on the  view of  law taken  by the  courts  while interpreting sec.  56(b) of  the  repealed  Act.  Proceeding along this  line, Mr. Sen urged that under sec. 56(b) of the 1877 Act even though injunction could not be granted to stay proceedings in  a court  not subordinate  to that from which injunction is sought, the Court by an interpretative process spelt out  a power to grant injunction in personum against a party from  instituting a proceeding. It is true that giving a literal  meaning to  the provision contained in sec. 56(b) which denied  the power  to the Court to grant injunction to stay proceedings  in a  court not  subordinate to  that from which  injunction   is  sought,  the  court  demarcated  the unoccupied area  by holding  that even  if the  court cannot grant injunction  to stay  the proceeding,  it can certainly injunct a party from instituting or prosecuting a proceeding in a court not subordinate to that from which the injunction was  sought.  But  it  is  this  very  interpretation  which attracted  the   attention  of   the  Legislature,   and  it respondent by  specific change  in language  to nullify  the interpretation so  that it  becomes crystal  clear  that  an injunction cannot  be granted  to restrain  any person  from instituting or  prosecuting any  proceeding in  a court  not subordinate to  that from  which the  injunction was sought. The 975 power to grant injunction in personum was thus legislatively curtailed. Legislative  response to  court’s  interpretation has to  be noticed  and in our opinion the alteration in the language provides  the legislative  response to the judicial interpretation, and cannot be wished away, but must be given effect.      Mr. Sen,  however, urged  that the Specific Relief Act, 1877  was   founded  on  English  equity  jurisprudence  and therefore, it was permissible to refer to English law on the subject wherever  the Act did not deal specifically with any topic. (See  Hungerford Investment  Trust Limited v. Haridas Mundhra &  Ors .)(1)  It was further submitted that 1963 Act is equally  based on the experience derived from the working of the  1877 Act  and the  English equity  jurisprudence and therefore, where  light is shed by decisions in England, the same must  illumine our  path. Where  provisions are in pari materia between the English Act and the Indian Act and where local  conditions   do  not   materially  differ   from  the conditions in  U.K., one  may keeping in view the conditions in our  country look at the view taken by the English courts and  if   consistent  with  our  jurisprudence,  our  social conditions, our chalked out path in which the law must move, one can profitably take help of the decision. There would be nothing wrong in referring to the same. But ignoring all the relevant considerations,  one cannot  bodily import  English decisions in our system to develop a hybrid legal system and one cannot be so hypnotised by English decisions to overlock legislative changes introduced in Indian Law.      With this caution, let us refer to one or two decisions relied on  by Mr. Sen to expand the sweep of the language of Sec. 41(b),  so that  the court  can still  injunct a person from instituting  a proceeding which the person is otherwise entitled to  institute in  a court of coordinate or superior jurisdiction, in  the teeth of express ’prohibition’ enacted in sec. 41(b).      To start with, it would be advantageous first to notice

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Sec. 24(5)  of the  Supreme Court  of Judicature Act of 1873 now reenacted as Supreme Court of Judicature (Consolidation) Act 1925, which reads as under :           "No case  or proceeding at any time pending in the      High Court  of Judicature or before the Court of Appeal      shall be restrained by prohibition or injunction." 976 It would  appear at  a glance  that an  injunction cannot be issued to  stay a  pending proceeding  in the  High Court of Judicature or  before the  Court of Appeal. The section does not refer  to initiation or institution of proceeding . On a grammatical interpretation  of the  section it would be open to the  court to  spell out  a power  to grant injunction to restrain a person from instituting a proceeding because what is barred  by the  statute is  injunction from prosecuting a pending proceeding. Compare this language with Section 41(b) which specifically  provides that  an injunction  cannot  be granted  to   restrain  a   person  from   instituting   and prosecuting any  proceeding. The  relevant provision  in our country covers  both the  situations  while  in  England  it covers only one situation. This clear distinction in law has to be  kept in  view before  applying English  decisions  to which our attention was drawn.      And now  to the decisions : In Cadiz Waterworks Company v. Barnett(1), the court on being satisfied that the Company was solvent  and that  the debt  was bona  fide disputed and that the  object of  the defendant  in the  case was not the bona fide  purpose of honestly compelling the payment of his debt but  for the  purpose of  making an  unjust attempt  to compel them  to submit  to an  unjust demand, restrained the respondent from  presenting a  petition for  winding-up  the Company in  the Court.  In reaching  this conclusion  it was observed that  if a  winding-up petition  is  presented  and advertised, it  would  inflict  irreparable  injury  on  the plaintiffs, while  at the  same moment it could not possibly do the  defendant slightest  good. Let it be definitely made clear  that   not  a  whisper  was  raised  challenging  the jurisdiction of  the Court  to grant  such an injunction and obviously could  not be  raised in  view of the provision in Supreme  Court   of  Judicature   Act  of   1873   extracted hereinbefore which  did not  deny to  the Court the power to grant an  injunction restraining a person from instituting a proceeding.  Similarly   in  Circle  Restaurant  Castiglione Company v. Lavery(2) the court by its short order restrained defendant Lavery from presenting any petition to wind-up the company in  respect of  any debt then due or alleged to have been due  to him  on certain conditions. In giving the short order, Jessel  and followed the decision in Cadiz Waterworks Company. One  more decision to which our attention was drawn was the  New Travellers’ Chambers Ltd. v. Messrs. Cheese and Green(2) in which the defendant was restrained 977 by an  injunction of  the court from presenting a winding-up petition.  In   the  last   two  mentioned  cases  also,  no contention was  raised, because  obviously it  could not  be raised, that  the court  had no  jurisdiction to  grant  the injunction. In  our opinion  these decisions  are not at all helpful for  two reasons  : one  that the  Supreme Court  of Judicature Act  clearly provided  that injunction  cannot be granted restraining prosecuting a pending proceeding and the provision  was   silent  on  the  question  of  granting  an injunction  restraining  instituting  a  proceeding  and  in respect of  which the  1963 Act  is more specific, clear and unambiguous; and  secondly, at  no time  in  all  the  three decisions, the  defendant against  whom the  injunction  was

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sought ever  questioned the  jurisdiction of  the  court  to issue  an   injunction  restraining  it  from  presenting  a winding-up petition  thereby inviting  the court  to give  a specific ruling  on the subject. We are, therefore, disposed to take no notice of these decisions.      However, in  the course of further investigation on the point, we  tumbled across  Chales Forte  Investments Ltd. v. Amanda.(1) The Court of Appeal in that case unanimously held that the  presentation of  a winding-up  petition  could  be restrained by  an injunction,  granted  under  the  inherent jurisdiction of  the court  to stay  proceedings which  were vexatious or  an abuse  of the  process of  the  court,  for amongst others  the  principal  reason  that  a  winding  up petition was  not the  proper remedy in the circumstances of the particular  case. In  that case  a minority share-holder was sought to be restrained by an injunction of the court at the instance  of the  company from  presenting a  winding-up petition on  the ground  that it  was just  and equitable to wind up  the company.  Pennycuick, J.  declined to grant the interim injunction  and the  company appealed.  The Court of Appeal  while  reversing  the  decision  held  that  in  the circumstances of  the case  winding-up petition  was  not  a proper remedy and granted the injunction. The power to grant injunction  in  such  circumstances  was  not  shown  to  be referable to  any statutory provision nor was it pointed out that there  was any statutory inhibition against granting it and the source of power was traced to the inherent powers of the Court.      One more  decision we  came across  and which  to  some extent deviates  from the  consistent view  taken in all the aforementioned decisions,  is the one Bryanston Finance Ltd. v. De Vries.(2) While 978 vacating the injunction granted in broad terms, the Court of Appeal held  that the  presentation of  a  petition  in  the circumstances discussed  in the  judgment, would  not be  an abuse on the ground that it could not possibly succeed. In a concurring judgment, Sir John Pennycuick observed as under:           "I should  like to  add that where a company seeks      relief of  this kind  the  procedure  by  way  of  writ      claiming an  injunction to  restrain presentation  of a      petition, followed immediately by a motion expressed to      claim an  interlocutory injunction  in the  same terms,      appears clumsy  and inapposite. In occurs to me that it      should be  possible to  devise some  more apt  form  of      procedure for  instance an  originating motion  in  the      Companies Court."      One more  decision which  we would like to refer is the one in Stonegate Securities Ltd. v. Gregory.(1) In that case an  injunction  was  granted  restraining  a  creditor  from presenting a  winding-up petition  on the ground that he was at best  a contingent creditor and the company had sought an injunction  to  restrain  the  creditor  from  presenting  a petition on any other basis than as the contingent creditor. For the  same  reasons  for  which  we  could  not  persuade ourselves to  accept the earlier decisions as being helpful, these decisions would not be of any assistance.      And it may be clarified that the reliance placed by Mr. Sen on  foot-note 7,  8 and  9 in  Companies Act by Buckley, Fourteenth  Edition,   page   524   and   Palmer’s   Company Prededents, Part II Seventeenth Edition at page 45 would not take his  case further  because these notes are based on the aforementioned decisions.      Canvassing for  the contrary  view Mr.  Ghosh,  learned counsel for  the appellant  referred to Udyog Mandir v. M/s.

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Contessa Knit  Wear and  Ors.(2) wherein the late Vaidya, J. set aside  an interim  injunction granted  by the  judge  of Small Causes  Court restraining a defendant in a suit before him from  proceeding with  the  Arbitration  case  initiated under  the   Maharashtra  Co-operative  Societies  Act.  The learned judge held that the Arbitrator functioning under the Maharashtra  Co-operative  Societies  Act  is  not  a  court subordinate 979 to the Small Causes Court and in that case sec. 41 (b) would deny jurisdiction  to  the  court  to  grant  an  injunction because a  court cannot even do temporarily what it has been prohibited by law to do finally or perpetually. Though it is not made  clear, the  learned judge  was not  impressed  the contention that  sec. 41 (b) deals with perpetual injunction and the grant or refusal of temporary injunction is governed by Order  39 Code  of Civil  Procedure and  there  is  well- recognised dichotomy  between the  two.  The  learned  judge appeared to  be of  the opinion  that where the final relief cannot be  granted, temporary  relief in aid can as well not be granted  because that  would  also  be  contrary  to  the provision of  Sec. 41  (b). This  view was reiterated by the same learned  judge in  Krishnadevi P.  Gupta  and  Anr.  v. Banwarilal Hanumanprasad  Tibrewala and Ors.(1) He also took note of  the fact  that the  Chief justice  of the same High Court had  affirmed the  view in  another proceeding  before him. Therefore,  as far  as Bombay  High Court is concerned, there appeared  to be  a near  unanimous view that the court had no  jurisdiction to grant interim injunction restraining a person  from instituting  any proceeding  in a  Court  not subordinate to  that from  which the injunction is sought in view of  the provision  contained in Sec. 41 (b) of the Act. Surprisingly, the  Division Bench  of the  Bombay High Court against whose  decision the  present appeal is heard did not even choose to refer or to over- rule any of these decisions and proceeded  to dispose  of the  contention in  respect of provision contained  in Sec.  41 (b) in the following terms, the meaning  of which we find difficult to unravel. Says the Court :           "Our attention  was also  drawn to  the provisions      contained in  the Specific Relief Act and in particular      to sec.  41 thereof.  It  appears  to  us  that  in  an      appropriate  case   particularly  in   a   suit   where      cancellation of certain negotiable instruments had been      sought, it  would be  open to  the  Court  to  restrain      further action  being  taken  on  the  said  negotiable      instrument particularly  the action of the limited type      which is  sought to  be restrained  in the instant case      viz.  winding  up  proceedings.  The  position  may  be      different if  a total  bar was sought which perhaps may      not be granted."      Mr.  Sen,   learned  counsel  for  the  respondent-Bank however, contended  that even  if the respondent-Bank is not entitled to injunc- 980 tion, temporary  or perpetual,  under sec.  41 (b)  or under 0.39 of  the Code  of Civil  Procedure, yet  the  court  had inherent power  to grant injunction and therefore this Court should not  interfere with the decision of the High Court at this stage. Reliance was placed on Manohar Lal Chopra v. Rai Bahadur  Rao   Raja  Seth  Hiralal.(1)  Raghubar  Dayal,  J. speaking for  the majority  in terms held that the court has inherent power  to issue temporary injunction in cases which were not  covered by  the provisions  of 0.39 of the Code of Civil Procedure.  Shah, J.  in his  dissenting judgment took

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the contrary  view and  relied upon Padam Sen v. State of U. P.(1) In  view of the majority decision, it must be conceded that the  court can  in appropriate  cases  grant  temporary injunction in  exercise of  its inherent  power in cases not covered by  0.39 C.P.C.  But while  exercising this inherent power, the court should not overlook the statutory provision which  clearly   indicates  that   injunction  to   restrain initiation of  proceeding cannot  be granted. Sec. 41 (b) is one such  provision. And it must be remembered that inherent power of  the court cannot be invoked to nullify or stultify a statutory provision. We have meticulously gone through the appellate judgment  and we  find not the slightest reference to the  invocation of  the inherent  power of  the court  in granting the  order of  injunction now  under challenge. Not only that, but the court has not held that the contention of the Corporation  is frivolous  or untenable  or the claim is malafide. This  becomes clear  from the  observation of  the court that  the order  passed by  it is  not founded  on the merits of  the Bank’s  case or  lack of  merit in  any claim which the  Corporation may  have against  the plaintiff-Bank and it  would be  open to  the Corporation to file a regular suit  or   summary  suit  against  plaintiff-Bank  in  which appropriate orders  would be  passed by  the court seized of the matter  as and when the occasion arises for the same. We find it  very difficult  to appreciate  this approach of the Court because  the Court  has not rejected even at the stage of the  consideration of  prima facie  case or on balance of conviction that the claim of the Corporation is frivolous or untenable or  not prima facie substantiated. On the contrary the Court  leaves open  to the Corporation to file a suit if it  is  so  advised.  The  High  Court  only  restrains  the Corporation from  presenting a winding-up petition. We again see no  justification for  this dichotomy  introduced by the Court in  respect of  various proceedings which were open to the Corporation to be taken against the Bank leaving some 981 open and  some restrained  by injunction. Neither in statute law nor  in enquity,  we find  any  justification  for  this dichotomy.      Mr.  Sen,  however,  urged  that  the  presentation  of winding-up petition  coupled with  advertisement thereof  in newspaper  as   required  by   law   has   certain   serious consequences on  the status,  standing, financial  viability and stability and operational efficiency of the company. Mr. Sen further urged that where the debt is bona fide disputed, a petition  for winding-up is not an alternative to the suit to recover  the same  but may be a pressure tactic to obtain an unfair  advantage and  therefore, despite  the  provision contained in  sec. 41(b) the court must spell out a power in appropriate cases to injunct a person from filing a winding- up petition.  Most of  the decisions  in England hereinabove discussed a length have been influenced by this aspect. This approach,  however,   clearly  overlooks  various  statutory safeguards against admission, advertising and publication of winding-up petitions.  Sec. 433  of the  Companies Act, 1956 sets out circumstances in which a company may be wound-up by the Court, one such being where the company is unable to pay its  debts.   Sec.  434   sets  out  the  circumstances  and situations in  which a company may be deemed to be unable to pay its  debts. Such  a deeming  fiction would arise where a notice is  served upon the company making a demand of a debt exceeding Rs.  500 then due and requiring the company to pay the same  and the  company has  for  a  period  of  3  weeks neglected to pay the sum, or to secure or compound for it to the reasonable  satisfaction of the creditor. Rule 95 of the

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Companies (Court) Rules, 1959 provides that the petition for winding-up a  company shall  be presented  in the  Registry. Then comes Rule 96 which is very material. It provides that: upon the  filing of  the petition, it shall be posted before the Judge  in Chambers  for admission  of the  petition  and fixing a date for the hearing thereof and for the directions as to the advertisements to be published and the persons, if any, upon  whom copies of the petition are to be served. The Judge may,  if he  thinks fit,  direct notice to be given to the Company before giving directions as to the advertisement of the  petition. It  would appear  at  a  glance  that  the petition has to come-up in Chambers before the company Judge and not  in open Court, and the Rule confers a discretionary power on  the judge not to give any directions at that stage but merely  issue a  notice to  the  company  before  giving directions. If  upon receipt  of  such  notice  the  company appears and  satisfies the  judge that the debt is bona fide disputed or  the presentation  of the  petition is mala fide actuated by an ulterior 982 motive, or  abuse of  the process of the Court certainly the judge may  decline to  admit the petition and may direct the party presenting winding-up petition to prove its claim by a suit or  any other  manner.  It  is  undoubtedly  true  that winding-up petition is not a recognised mode for recovery of debt and  if the company is shown to be solvent and the debt is bona  fide disputed,  the Court generally is reluctant to admit the petition. Therefore, the power is conferred on the judge before  whom the  petition comes-up  for admission  to issue pre-admission  notice  to  the  company  so  that  the company is not taken unaware and may appear and point out to the judge  that the  petitioner is  actuated by  an ulterior motive and  presentation of  the petition  is  a  device  to pressurise the company to submit to an unjust claim. This is a sufficient  safeguard against  mala fide  action  and  the company would  not suffer  any consequences  as apprehended, and the  company can  as well  appear and  ask for  stay  of further proceeding  till the  petitioner-creditor proves his debt by  a regular  suit. This  is the  jurisdiction of  the Company Court  and it  cannot be  restrained from exercising the same  by some  other court restraining the creditor from presenting a winding-up petition. There is sufficient built- in safeguard  in the provisions of the Companies Act and the Rules framed  thereunder which  would save  the company from any adverse  consequences, if  a petitioner  actuated by  an ulterior motive presents the petition. This was taken notice of by  this Court  in National  Conduits (P)  Ltd. v.  S. S. Arora.(1) wherein this Court set aside the order of the High Court of  Delhi was  of the opinion that once a petition for winding-up is  admitted to  the file,  the Court is bound to fourth with advertise the petition. This Court held that the High Court  was in  error in  holding that  a  petition  for winding-up must  be advertised  even before  the application filed by the company for staying the proceeding for the ends of justice  or to prevent abuse of the process of the court. This court  held that  the view taken by the High Court that the court  must as  soon the petition is admitted, advertise the petition  is contrary  to the plain terms of Rule 96 and such a view if accepted, would make the court an instrument, in possible  cases, of harassment and even of blackmail, for once a  petition is  advertised, the business of the company is bound  to suffer  serious loss  and  injury.  This  legal position effectively  answers the apprehension voiced by Mr. Sen and even entertained by the High Court as also it can be said with  confidence  that  this  must  be  the  procedure,

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Pennycuick J. was in search of when in Bryanston 983 Finance Ltd.  case he  said that  it should  be possible  to devise some  more apt  form of  procedure than  to injunct a person from  initiating the  proceeding. In fact, the Kerala High Court  in George  v. The  Athimattam  Rubber  Co.  Ltd. Thodupuzha(2) went to the extent of showing that when a pre- admission notice  is issued to the company under Rule 96, it would be  open to  the company to appear and ask for stay of proceedings or  even revoke the admission on the ground that the petitioner  was not  acting  bona  fide  in  filing  the petition and  in the  facts before  the Kerala High Court it allowed the  application of  the company  and the winding-up petition was  dismissed. We  are, therefore, not disposed to accept the  contention of  Mr. Sen  that the  power to grant injunction restraining  one  from  presenting  a  winding-up petition must  either be spelt out for the protection of the company or  as held  by decisions  herein above  quoted kept intact and  should not  be tinkered with to save the company from being  harassed by persons actuated by ill-will towards the company from presenting the petition.      Turning to  the facts  of this case, let it be recalled that the  learned Single  Judge had  declined to  grant  any temporary injunction  against  the  present  appellant,  the Corporation, and in our opinion rightly. The Appellate Bench interfered with the order for the reasons which are far from convincing and it overlooked the provision contained in sec. 41 (b)  and effect  thereof. Taking the most favourable view of the decision of the Appellate Bench and assuming that the Bench had  in its  mind the  inherent power  of the court to grant injunction despite statutory inhibition and consistent with the view taken by the courts in England, it had then in order to  do justice  between the  parties  first  reach  an affirmative finding that the winding-up petition as and when presented by the Corporation-the creditor would be frivolous and would constitute an abuse of the process of the court or a device  to pressurise  the Bank to submit to an unjust and dishonest  claim.   It  must   also  reach   an  affirmative conclusion that  the debtor-Bank  is sufficiently solvent to satisfy the  claim as  and when  established. It has also to record  an  affirmative  finding  that  the  Corporation-the creditor is  not seeking bona fide to present a petition for winding-up  but   is  actuated  by  an  ulterior  motive  in presenting  the   petition.  Decisions  in  New  Travellers’ Chambers Ltd.,  Chales Forte  Investments Ltd. and Bryanston Finance Ltd.  (supra) would  require these  findings  to  be recorded before  an interim  injunction can  be granted. The decision of the Appellate Bench is 984 conspicuously silent  on these  relevant points and for this additional reason also the appeal must succeed.      The appeal  is accordingly allowed and the order of the Appellate Bench is set aside and the one made by the learned Single Judge Modi, J. is restored with costs. H.L.C.                                       Appeal allowed. 985