Gauhati High Court
Indian Oil Corporation Ltd vs Sadguru Engineers And Allied Services … on 28 July, 2026
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GAHC010144442026
2026:GAU-AS:10339
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/313/2026
INDIAN OIL CORPORATION LTD
A COMPANY REGISTERED UNDER THE COMPANIES ACT, 1956 HAVING ITS
REGISTERED OFFICE AT INDIAN OIL BHAWAN, G-9, ALI YAVAR JUNG
MARG, BANDRA EAST, MUMBAI- 400051 AND HAVING ITS ASSAM STATE
OFFICE AT INDIAN OIL BHAWAN, SECTOR-III, GUWAHATI REFINERY
TOWNSHIP, NOONMATI NEAR NARENGI FLYOVER, GUWAHATI- 781020,
ASSAM AND REPRESENTED BY ITS EXECUTIVE DIRECTOR, IOAOD STATE
OFFICE, THORUGH HIS POWER OF ATTORNEY HOLDER SHRI SHRI
MRINAL TALUKDARM AGED ABOUT 46 YEARS, SON OF LATE KABIN CH
TALUKDAR, R/O PRAGATI NAGAR, 5TH BYE LANE, SATGAON GUWAHATI,
PIN- 781171
VERSUS
SADGURU ENGINEERS AND ALLIED SERVICES PVT LTD AND ANR
.A COMPANY REGISTERED UNDER THE COMPANIES ACT, 1956 HAVING
ITS REGISTERED OFFICE AT HANUMAN TOWER, 406, 4TH FLOOR, SATI
JAYMATI ROAD, ATHGAON, GUWAHATI 781001, KAMRUP M, ASSAM AND
IS REPRESENTED BY ITS AUTHORIZED SIGNATORY SRI MUKESH JALAN,
S/O LATE SHREE CHAND JALAN, R/O FLAT 8C, BLOCK B, SIGNATURE
ESTATES, ULUBARI, GUWHATI- 781007
2:HDFC BANK LIMITED
A COMPANY REGISTERED UNDER THE COMPANIES ACT
1956 HAVING ITS REGISTERED OFFICE AT HDFC BANK HOUSE
SENAPATI BAPAT MARG
LOWER PAREL (W)
MUMBAI- 400013 AND ITS OFFICE IN GUWAHATI AT BUILDWELL
COMPOUND GROUND
FIRST AND 2ND FLOOR
ZOO ROAD
GUWAHATI- 781005
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KAMRUP(M)
ASSAM AND REPRESENTED BY ITS BRANCH MANAGE
Advocate for the Petitioner : MR. M K CHOUDHURY, MR. M SARMA,MR. R BORPATRA,MR
N BARUAH
Advocate for the Respondent : MR B YADAV(R1), MR A K RAI(R1),MS M DAS(R1)
BEFORE
HONOURABLE MR. JUSTICE ROBIN PHUKAN
ORDER
Date : 28.07.2026
Heard Mr. M.K. Choudhury, learned Sr. Counsel, assisted by Mr. N.
Baruah, learned counsel for the petitioner.
2. This Civil Revision Petition, under Article 227 of the Constitution of
India, is preferred by the petitioner, namely, Indian Oil Corporation Ltd., a
Company registered under the Companies Act, 1956 having its registered
office at Indian Oil Bhawan, G-9, Ali Yavar Jung Marg, Bandra (EAST,
Mumbai- 400051) and having its Assam State Office at Indian Oil Bhawan,
Sector-III, Guwahati Refinery Township, Noonmati, Near Narengi Flyover,
Guwahati-781020, Assam and represented by its Executive Director, IOAOD
State office, through his Power of Attorney Holder Shri Mrinal Talukdar,
challenging the order, dated 05.12.2025, passed by the learned Civil Judge
(Senior Division) No. I, Kamrup (M) (Trial Court herein after)in Misc. (J)
Case No. 1119/2025 arising out of Commercial Suit No. 309/2025.
3. It is to be noted here that vide impugned order dated 05.12.2025, the
learned Trial Court, in Misc. (J) Case No. 1119/2025, had granted an ex
parte ad-interim injunction restraining the petitioner from invoking the bank
guarantees of the respondent No.1 herein.
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4. Mr. Choudhury, learned counsel for the petitioner, Indian Oil
Corporation Ltd. submits that the present petition is instituted under Article
227 of the Constitution of India, by the petitioner seeking following
relief(s):-
(a) To set aside and quash the order dated 5.12.2025,
passed by the learned Civil Judge (Sr Division) No.
2, Kamrup(M), in Misc. (J) Case No 1119/2025, in CS
No 309/2025, thereby quashing the ad-interim ex-
parte injunction order restraining encashment of
Bank Guarantees specified in Schedule A of the
suit;
(b) To direct the Additional District Judge No. 2,
Kamrup(M), Guwahati to expeditiously dispose of the
appeal bearing number Misc. Appeal No. 22 /2026
(Indian Oil Corporation Limited vs. Sadguru
Engineers & Allied Services Pvt. Ltd. & Anr.)
within the stipulation contained under Section 14
of the Commercial Courts Act, 2015, but not later
than 04.11.2026; and
(c) To direct the HDFC Bank authorities, i.e. the
Respondent No. 2 to extend the validity of the Bank
Guarantees more specifically the Bank Guarantee no.
264GT01243020001 (expiring on 25.10.2025); Bank
Guarantee no. 264GT01242930001 (expiring on
16.10.2025); Bank Guarantee no. 264GT01242890001
(expiring on 14.10.2025) beyond 04.11.2026, so as
not to render the Misc. Appeal No. 22/2026 (Indian
Oil Corporation Limited vs. Sadguru Engineers &
Allied Services Pvt. Ltd. & Anr.) infructuous.
4.1. Referring to the petition Mr. Choudhury submits that the respondent
No. 1, as plaintiff, has instituted a suit being Commercial Suit No. 309 of
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2025, before the Ld. Court of the Civil Judge (Senior Division) No. 2,
Kamrup(M), seeking a decree declaring that:-
(A) the Clause in Minutes dated 16.2.2024 and 8.10.2024
for imposing penal interest @ 15% are void for
reason of uncertainty;
(B) charging of interest @ 15% by compounding it monthly
amounted to penalty, was against public policy, and
not binding upon it;
(C) imposition of penal interest on Invoice dated
8.3.2025 was illegal and arbitrary;
(D) claim of IOCL based on its ledger (Document No. 39)
was illegal, arbitrary and not reflective of true
balance outstanding;
(E) the petitioner/IOCL threatened invocation of Bank
Guarantee as detailed in Schedule A of the plaint
was arbitrary. excessive, disproportionate and
abusive of dominant contractual position;
(F) realization of a sum of Rs 24,46,492/-from the
petitioner/IOCL with @13 % interest p.a thereon
from 11.2.2025;
(G) realisation of a sum of Rs 4,08,463/-, from the
IOCL/petitioner with interest thereon @ 13% per
annum;
(H) pendente lite and future interest @ 13 % p.a.
thereon till realization of said amounts; and
(I) permanent injunction restraining invocation of Bank
Guarantee as given in Schedule A; costs and other
reliefs etc.
4.2. Mr. Choudhury also submits that the respondent No. 1 along with the
said suit, also filed one application No. 474(F)/25, numbered as Misc. (J)
Case No 1119/2025, under Order XXXIX Rules 1 and 2 read with Section
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151 of the Code of Civil Procedure, 1908, praying for ad-interim temporary
Injunction restraining the revision petitioner/IOCL from invoking the Bank
Guarantees in Schedule A of the plaint, till the disposal of the case.
Thereafter, upon the said application, the learned Trial Court, vide order
dated 05.12.2025, granted the prayer of the respondent No. 1 for ad-
interim temporary injunction and stayed any coercive action by the IOCL on
its email dated 18.11.2025, and issued notice to the petitioner as defendant
no. 1 therein as well as in the main suit CS No 309/2025, fixing the next
returnable date on 05.01.2026.
4.3. Mr. Choudhury also submits that the petitioner received notice and
appeared through counsel on 05.01.2026, and on the said date, filed the
written objection to the Misc. (J) Case No 1119/2025. The petitioner was
also granted time to file its written statement and other
pleadings/documents in support of its contentions. The case was fixed on
18.02.2026 for necessary orders. The petitioner, thereafter, on 18.02.2026,
filed the written statement and counter claim in the main suit and also filed
application No 901/2026, in Commercial Suit No.309 of 2025, under Order
XXXIX, Rule 4 of the Code, 1908, for modification of the ex-parte ad-interim
injunction order, based on which a separate Misc. (J) Case No 226/2026,
was registered. The respondent No.1/plaintiff was granted time to file his
objection thereon, and the interim injunction was extended fixing the next
date on 08.04.2026 for hearing on the injunction, and for objection on the
Petitioner’s prayer for modification of the said injunction order dated
5.12.2025. The next date was also fixed for hearing on compliance of
Section 12A of the Commercial Courts Act, 2015 in the main suit.
Thereafter, on 08.04.2026, respondent No. 1 did not file any objection
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petition/affidavit, but prayed for time on ground of illness of counsel. The
Ld Court below fixed the Misc. (J) Case No 226/2026 on 27.4.2026 for
objection, and the Misc. (J) Case No 1119/2025 and CS No 309/2025 on
21.05.2026, for hearing on injunction and compliance u/S 12 A of the Act,
2015. Further, Respondent No. 2 finally made an appearance in the suit and
prayed for vacating the order declaring proceedings against it to go on ex-
parte. Thereafter, the Misc. (J) case 226/2026 was listed on 27.04.2026, but
the learned court below was again on leave. The respondent No.1 filed its
objection, raising various specious pleas, without addressing it’s earlier
admission on facts, and only reiterated its financial condition based on
contracts, payment disputes with third parties which have no nexus with
the fact of admitted pending dues to IOCL. The respondent No.1 also
admitted that its proprietor was facing criminal proceedings on charges of
defrauding/cheating the NHAI, his suppliers and sub-contractors of their
legitimate contractual dues and had obtained an order of regular bail on
27.02.2026, from this Court in this connection as well and the said bail
order reflects serious allegations against the plaintiff of diversion of public
funds, illegal subcontracting of work, non-payment of released funds, delay
in completion of highway works etc and subsequently the NHIDCL has
cancelled its contracts, the CBI has arrested a NHIDCL senior official for
corrupt actions and the GST department has raided the plaintiff’s offices in
May, investigating it for tax evasion and these facts show duplicitous,
deceptive and mala-fide actions and conduct of the plaintiff/respondent
No.1, which would disentitle any litigant from relief in equity, such as
continuing protection of an interim injunction etc from any Court of Law.
4.4. Mr. Choudhury has further pointed it out that the petitioner has also
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preferred a Misc. Appeal U/S 13 of the Commercial Courts Act,
2015, r/w O.XLIII, Rule 1(r) of the Code, 1908 against the order
dated 08.04.2026 passed in Misc. (J) Case No 1119/2025. The said appeal
has been moved before the learned Additional District & Sessions Judge No.
2, Kamrup (M) on 5.5.2026 and notices were issued thereon, on 6.5.2026
and the matter was heard on 11.5.2026 on the issue of interim prayer of
the IOCL/appellant therein to be allowed to encash at least those BGs that
would cover the admitted liability of Rs 3.30 odd crores of outstanding
dues, and desired to hear respondent No. 1 before deciding on interim
relief. The next date was fixed on 11.6.2026 for hearing, but as service
report was awaited the appeal was again fixed on 25.6.2026. On that date,
it was found that the Respondent No. 2 had appeared but notice
plaintiff/respondent no. 1 was returned unserved with note/server report
that establishment (office address of plaintiff as per the cause title of the
suit) was under lock and key for the past 10-12 days. The next date has
been fixed on 23.7.2026, for report and again steps have been taken, but it
appears that the office address may have been either abandoned or locked
up by the plaintiff, which effectively means that the appeal might be at an
impasse for now, despite the same party actively contesting the commercial
suit before the Trial Court through counsel all this while.
4.5. It is the further submission of Mr. Choudhury that the merits of the
interim order/injunction, its modification or appropriate moulding of
equitable relief to serve the best interests of both parties etc., are mixed
questions of facts and law that are capable of being adjudicated by the
Hon’ble Appellate Court below. These questions are not being raised herein
on the merit of the injunctory relief afforded to respondent No.1, but rather
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on the jurisdiction, scope and competence of the learned Trial Court in
granting such relief vide the order dated 5.12.2025, which is not under
challenge in the Misc Appeal No 22/2026 at present, and as such is open
for adjudication by this Hon’ble Court vide its supervisory jurisdiction under
Article 227 of the Constitution of India, 1950.
4.6. He also submits that this civil revision petition is preferred mainly on
the following grounds:
A. The application filed under Order XXXIX Rule 1 and 2
of the Code of Civil Procedure, 1908, did not even
make any prayer for stay of any coercive action on
the part of the IOCL pursuant to its email dated
18.11.2025 and by including such relief in its ex-
parte ad interim injunction order dated 5.12.2025,
the Ld Trial Court has patently and wholly exceeded
its jurisdiction by granting a prayer not
specifically claimed by way of injunctory relief.
B. The learned Trial court failed to appreciate the fact
that the plaintiff/respondent No. 1 evaded the
mandatory procedure envisaged U/S 12A, as held by
Hon’ble Supreme Court in Patil Automation Private
Limited and Ors. vs. Rakheja Engineers Private
Limited (2022 SCC online SC 1028)and by claiming
urgency and irreparable harm, in case the mediation
procedure was adopted and the BGs encashed by the
petitioner/ IOCL in the meantime. However, the Ld
Court failed to take note of the aforesaid
proposition and also failed to consider the
contemplation of urgent relief and the same was not
properly deliberated upon by the learned Trial Court.
And it has also failed to take note of its own
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annexed documents of the plaintiff, which disclose
that the issue of non-clearance of dues was being
flagged since 15.3.2025, and the dues were hovering
around Rs 6.6. crore in March.
C. The learned Trial court failed to consider that the
plaintiff had itself proposed encashment of BGs to
the tune of Rs 4 crore to clear its outstanding dues,
vide its proposal dated 27.6.2025 (mentioned as
Document 38 in plaint) and was now resiling from its
own documented position by seeking an injunction on
the encashment of any of the 4 BGs in Schedule A.
D. The learned Trial court failed to take into account
the fact that even in his last communications, the
plaintiff was not seriously disputing his liability
and his only play was for grant of extension of time.
And by granting injunction the learned Trial Court
had facilitated the dilatory tactics of the
plaintiff.
E. The learned Trial court failed to exercise its
jurisdiction and power in the manner envisaged by the
Act, 2015 and the Code, 1908 and as such the impugned
order dated 5.12.2025 is totally perverse.
F. The learned trial court failed to examine the fact
that the interest 15% was not compoundable and was
not chargeable with monthly rests and it was to be
charged on simple interest basis.
G. The learned Trial Court had failed to note that the
claim of the IOCL was basically admitted by the
plaintiff/respondent No. 1 to the tune of Rs 3.30
crores, in several official communications. The
remaining amounts in dispute (Rs 28 odd lakhs claimed
to be reimbursed/refunded by the IOCL) did not have
the associated ring of urgency, to assist in
circumvention of S. 12 A, for pre-institution
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mediation between the parties prior to commencing of
the suit.
H. The learned Trial Court had failed to appreciate that
the respondent had not provided any
documentation/letters from the bank by way of which
the additional liability of Rs. 4,08,463 was levied
upon the plaintiff. The said submission was merely a
misleading attempt before the Court for creation of
additional claim upon the Corporation.
I. The learned Trial Court has failed to appreciate that
intervention in encashment of an unconditional bank
guarantee, to recover admitted liabilities, was
permissible only in view of prevailing special
equities, if any, the nature of which were never
discussed in the order dated 5.12.2025 and fraud was
admittedly not an issue in this case.
J. The cause of action in relation to any dispute
pertaining to the invocation of a bank guarantee
shall lie before the Courts, which exercise
jurisdiction over the disputes arising from the
parent/underlying contract, and in view the principle
laid down in Mix South East Asa Shong Co Nav Marat
Enterprises Pvt. Ltd. reported as (1996) 3 SCC 443,
arose within the jurisdiction of the civil courts of
Arunachal Pradesh, as the contract was for HSD supply
from the State of Arunachal Pradesh only, not at
Guwahati, Kamrup(M) where the BGs were executed etc.
4.7. Lastly Mr. Choudhury submits that unless an interim order as prayed
for is passed, the petitioner would suffer irreparable loss and injury and
that the intervening period from 5.12.2025 has been spent in bona-fide
pursuit of other remedies by the petitioner, which have not borne fruit and
in any case, do not involve the issue of legality of the order dated
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5.12.2025, and that there is no other alternative remedy available to it and
therefore, it is contended to allow this petition.
4.8. Referring to the additional affidavit, Mr. Choudhury submits that the
petitioner, by way of the additional affidavit has placed on record some
additional points and facts for consideration. He submits that the errors
pointed out go to the root of the matter and strike at the foundation of the
case set up by the plaintiff, and if permitted to continue would cause
manifest injustice as well as interfere with the proper administration of
justice and Rule of Law. And the issues highlighted by the petitioner fall
within the very limited or circumscribed scope of the High Court’s
supervisory jurisdiction under Article 227, which is a facet of the Basic
Structure of the Constitution and can not be deemed to be completely
ousted by a statutory alternative remedy or provision.
4.9. Mr. Choudhury has also pointed it out that vide Notification dated
13.2.2019, the Courts of all Civil judges (Sr. Division) were designated as
Commercial Courts. The Courts of District Judges were also designated as
Commercial Appellate Courts under the Commercial Courts, Commercial
Division and Commercial Appellate Division of the High Courts
(Amendment) Ordinance, 2015. But, a Division Bench of this Court, hearing
the FAO No 73/2025 [M/s Brahmaputra Distillery & Anr. Vs.
Associated Alcohol and Beverages Company), was pleased to hold
the said Notification dated 13.2.2019 as non-est, having no legal effect or
consequence, for reason of having been issued under the Ordinance 2015,
which had been repealed and/or spent its force on 31.12.2015, by the
coming into effect of the Act, 2015 from said date. Thus, the same very
Commercial Court (i.e the Ld Civil Judge Sr. Division) constituted under the
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Notification dated 13.2.2019, stood denuded of its very jurisdiction ab initio,
as no jurisdiction could have been conferred when the power under the
Ordinance and the Ordinance of 2015 itself no longer existed. He also
pointed it out that the present suit, however, was instituted by plaintiff prior
to the date of the aforesaid judgment and order dated 18.12.2025. But, it
would be apparent that the learned Civil Judge (Sr. Division) could no
longer proceed with the trial of the suit CS No 309/2025 (and its connected
applications/Misc J Cases). As such, the question of jurisdiction of the Ld
Trial Court in initially passing, and subsequently continuing the interim
order dated 5.12.2025, assumes critical significance and requires judicial
appreciation under Article 227.
5. It is to be noted here that during the course of hearing a question was
put to Mr. Choudhury, as to whether the present petition under Article 227
of the Constitution of India is maintainable, as under Order 43 Rule 1(c)
CPC, an appeal lies against a rejection order, under Order 9 Rule 13 CPC,
and while alternative remedy is available and the petitioner has been
availing the same by filing an appeal before the appellate forum, Mr.
Choudhury submits that since the learned Trial Court had committed gross
jurisdictional error and the order being passed in flagrant disregard of law
and thereby occasioning failure of justice, the same can be interfered with
under Article 227 of the constitution of India.
5.1. It is also to be noted here that when another question was put to him
referring to the proposition of law laid down in the case of Mohammed Ali
vs. Jaya, passed on 11.7.2022 in Civil Appeal No 4113 of
2022, regarding maintainability of the petition under Article 227, wherein
the Hon’ble Supreme Court has held that once there was a statutory
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alternative remedy by way of an appeal available, the High Court ought not
to entertain revision application under Section 115 of CPC and under Article
227 of the Constitution of India. Mr. Choudhury stated that in the said case
an ex-parte judgment and decree was challenged and in the instant case an
ex-parte ad-interim injunction order is being challenged. There is no
decree, whether preliminary or final, against the petitioner herein and the
ex-parte interim injunction, being in the nature of an interlocutory order,
cannot be assailed u/S 115 of the Code, 1908, but ordinarily by way of an
appeal u/ S 13 of the Act.
6. Having heard the submissions of learned counsel for both the parties,
this Court has carefully gone through the petition and the documents
placed on record and also perused the impugned order, dated 05.12.2025.
Also gone through the decision referred to by the petitioner in the revision
petition.
7. From a cursory perusal of the petition reveals that the Commercial Suit
No. 309 of 2025, is instituted by the respondent No. 1, as plaintiff, before
the Ld. Court of the Civil Judge (Senior Division) No. 2, Kamrup(M), seeking
a decree declaring that the Clause in Minutes dated 16.2.2024 and
8.10.2024 for imposing penal interest @ 15% are void for reason of
uncertainty; charging of interest @ 15% by compounding it monthly
amounted to penalty, was against public policy, and not binding upon it;
imposition of penal interest on Invoice dated 8.3.2025 was illegal and
arbitrary; the claim of IOCL based on its ledger (Document No. 39) was
illegal, arbitrary and not reflective of true balance outstanding; invocation
of Bank Guarantee as detailed in Schedule A of the plaint was arbitrary,
excessive, disproportionate and an abusive of dominant contractual
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position, realization of a sum of Rs 24,46,492/- and Rs 4,08,463/-,
pendente lite and future interest @13 % interest p.a. with effect from
11.2.2025; pendente lite and future interest@ 13 % p.a. thereon till
realization of said amounts; and for permanent injunction restraining
invocation of Bank Guarantee as given in Schedule A; costs and other
reliefs etc.
7.1. Respondent No. 1, along with the said suit, also filed one application
No. 474(F)/25, numbered as Misc. (J) Case No 1119/2025, under Order
XXXIX Rules 1 and 2 read with Section 151 of the Code of Civil Procedure,
1908, praying for ad-interim temporary Injunction restraining the revision
petitioner/IOCL from invoking the Bank Guarantees in Schedule A of the
plaint, till the disposal of the case.
7.2. Thereafter, upon the said application, vide impugned order dated
05.12.2025, the learned Trial Court, in Misc. (J) Case No. 1119/2025, had
granted an ex-parte ad-interim injunction restraining the petitioner from
invoking the bank guarantees of the respondent No.1 herein and stayed
any coercive action by the IOCL on its email dated 18.11.2025, and issued
notice to the petitioner as defendant no. 1 therein as well as in the main
suit CS No 309/2025, fixing the next returnable date on 5.1.2026.
7.3. It also appears that the petitioner has also preferred a Misc. Appeal
U/S 13 of the Commercial Courts Act, 2015, r/w O.XLIII, Rule 1(r) of the
Code, against the order dated 08.04.2026, passed in Misc. (J) Case No
1119/2025, and the same is pending before the learned Additional District
& Sessions Judge No. 2, Kamrup (M) and on 05.05.2026 and notices were
issued thereon.
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8. In view of the aforesaid factual matrix and also in view of the
submissions advanced by Mr. Choudhury, learned counsel for the petitioner,
the issue, to be addressed by this Court, first, is as to whether the present
petition under Article 227 is maintainable or not.
Legal Trajectory:
9. Order 43 Rule 1(r) CPC explicitly provides for an appeal against an order
of injunction. It read as under:-
1. Appeal from orders:- An appeal shall lie from the
following orders under the provisions of section 104,
namely: —
(r) an order under rule 1, rule 2 [rule 2A],
rule 4 or rule 10 of Order XXXIX;
9.1. Thus, Rule 1(r) primarily relate to temporary injunctions and
interlocutory reliefs granted by a court. This means that if a court
passes an ex-parte or ad-interim injunction, the affected party has the right
to appeal under this provision. The statutory provision, i.e. Order 43 Rule
1(r) CPC is very clear and unambiguous that only an appeal will lie against
an order under Rule 1, Rule 2 [Rule 2A] of Rule 4 or Rule 10 of Order
XXXIX CPC.
10. It is, however, not in dispute that appeal is an alternative remedy
provided in the Code of Civil Procedure itself. Now, what is to be looked into
is, when alternative remedy is available, and in fact the same is being
availed by the petitioner by filing a Misc. Appeal U/S 13 of the Commercial
Courts Act, 2015, r/w O. XLIII, Rule 1(r) of the Code, against the order
dated 08.04.2026 passed in Misc. (J) Case No 1119/2025, and when the
same is pending before the learned Additional District & Sessions Judge No.
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2, Kamrup (M) and on 05.05.2026, and notices were issued thereon and
the same is pending for disposal, can the petitioner successfully maintain
the present petition under Article 227 of the Constitution of India.
Alternative Remedy vs. Constitutional Remedy under Article
227:-
11. It is also well settled that when alternative remedy is available by way
of an appeal of review, the constitutional remedy under Article 227 of the
Constitution of India is not available. In the case of Sadhana Lodh vs.
National Insurance Co. Ltd. and Anr., reported in (2003) 3 SCC
524, Hon’ble Supreme Court has held as under:-
“6. The right of appeal is a statutory right and where
the law provides remedy by filing an appeal on
limited grounds, the grounds of challenge cannot be
enlarged by filing a petition under Articles 226/227
of the Constitution on the premise that the insurer
has limited grounds available for challenging the
award given by the Tribunal. Section 149(2) of the
Act limits the insurer to file an appeal on those
enumerated grounds and the appeal being a product of
the statute it is not open to an insurer to take any
plea other than those provided under Section 149(2)
of the Act (see National Insurance Co.
Ltd. v. Nicolletta Rohtagi [(2002) 7 SCC 456 : 2002
SCC (Cri) 1788] ). This being the legal position, the
petition filed under Article 227 of the Constitution
by the insurer was wholly misconceived. Where a
statutory right to file an appeal has been provided
for, it is not open to the High Court to entertain a
petition under Article 227 of the Constitution. Even
if where a remedy by way of an appeal has not been
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District Judge, the remedy available to the aggrieved
person is to file a revision before the High Court
under Section 115 of the Code of Civil Procedure.
Where remedy for filing a revision before the High
Court under Section 115 CPC has been expressly barred
by a State enactment, only in such case a petition
under Article 227 of the Constitution would lie and
not under Article 226 of the Constitution. As a
matter of illustration, where a trial court in a
civil suit refused to grant temporary injunction and
an appeal against refusal to grant injunction has
been rejected, and a State enactment has barred the
remedy of filing revision under Section 115 CPC, in
such a situation a writ petition under Article 227
would lie and not under Article 226 of the
Constitution. Thus, where the State Legislature has
barred a remedy of filing a revision petition before
the High Court under Section 115 CPC, no petition
under Article 226 of the Constitution would lie for
the reason that a mere wrong decision without
anything more is not enough to attract jurisdiction
of the High Court under Article 226 of the
Constitution.”
11.1. Subsequently, in the case of Mohamed Ali vs. Jaya & Ors. CIVIL
APPEAL NO. 4113 of 2022, With CIVIL APPEAL NO. 4114 of 2022,
Hon’ble Supreme Court has held as under:-
21. At this stage, the decision of this Court in the
case of Virudhunagar Hindu Nadargal Dharma Paribalana
Sabai v. Tuticorin Educational Society; reported in
(2019) 9 SCC 538, is required to be referred to. In
the said decision, it is observed and held by this
Page No.# 18/23Court that wherever the proceedings are under the
Code of Civil Procedure and the forum is the civil
court, the availability of a remedy under CPC, will
deter the High Court and therefore, the High Court
shall not entertain the revision under Article 227 of
the Constitution of India especially in a case where
a specific remedy of appeal is provided under the CPC
itself. While holding so, it is observed and held in
paragraphs 11 to 13 as under:–
“11. Secondly, the High Court ought to have seen
that when a remedy of appeal under Section
104(1)(i) read with Order 43, Rule 1(r) of the
Code of Civil Procedure, 1908, was directly
available, Respondents 1 and 2 ought to have
taken recourse to the same. It is true that the
availability of a remedy of appeal may not
always be a bar for the exercise of supervisory
jurisdiction of the High Court. In A.
Venkatasubbiah Naidu v. S. Chellappan reported
in (2000) 7 SCC 695], this Court held that
“though no hurdle can be put against the
exercise of the constitutional powers of the
High Court, it is a well-recognised principle
which gained judicial recognition that the High
Court should direct the party to avail himself
of such remedies before he resorts to a
constitutional remedy”.
12. But courts should always bear in mind a
distinction between (i) cases where such
alternative remedy is available before civil
courts in terms of the provisions of Code of
Civil Procedure, and (ii) cases where such
alternative remedy is available under special
Page No.# 19/23
enactments and/or statutory rules and the fora
provided therein happen to be quasi-judicial
authorities and tribunals. In respect of cases
falling under the first category, which may
involve suits and other proceedings before civil
courts, the availability of an appellate remedy
in terms of the provisions of CPC, may have to
be construed as a near total bar. Otherwise,
there is a danger that someone may challenge in
a revision under Article 227, even a decree
passed in a suit, on the same grounds on which
Respondents 1 and 2 invoked the jurisdiction of
the High Court. This is why, a 3-member Bench of
this Court, while overruling the decision
in Surya Dev Rai v. Ram Chander Rai [Surya Dev
Rai v. Ram Chander Rai, (2003) 6 SCC 675],
pointed out in Radhey Shyam v. Chhabi
Nath [Radhey Shyam v. Chhabi Nath, (2015) 5 SCC
423 : (2015) 3 SCC (Civ) 67] that “orders of
civil court stand on different footing from the
orders of authorities or tribunals or courts
other than judicial/civil courts”.
13. Therefore wherever the proceedings are under
the Code of Civil Procedure and the forum is the
civil court, the availability of a remedy under
the CPC, will deter the High Court, not merely
as a measure of self-imposed restriction, but as
a matter of discipline and prudence, from
exercising its power of superintendence under
the Constitution. Hence, the High Court ought
not to have entertained the revision under
Article 227 especially in a case where a
specific remedy of appeal is provided under the
Code of Civil Procedure itself.”
Page No.# 20/23
22. Applying the law laid down by this Court in the
aforesaid decision to the facts of the case on hand,
the High Court ought not to have entertained the
revision petition under Article 227 of the
Constitution of India against the ex-parte judgment
and decree passed by the learned Trial Court in view
of a specific remedy of appeal as provided under the
Code of Civil Procedure itself. Therefore, the High
Court has committed a grave error in entertaining the
revision petition under Article 227 challenging the
ex-parte judgment and decree passed by the learned
Trial Court and in quashing and setting aside the
same in exercise of powers under Article 227 of the
Constitution of India.”
12. Thus, the legal proposition is well settled in the case of Sadhana
Lodh(supra), Where a statutory right to file an appeal has
been provided for, it is not open to the High Court to
entertain a petition under Article 227 of the Constitution.
Said proposition is also affirmed in subsequent decision, in Mohamed Ali
(supra), wherein it has been held that the High Court shall not
entertain the revision under Article 227 of the Constitution
of India especially in a case where a specific remedy of
appeal is provided under the CPC itself. It is also well settled in
A. Venkatasubbiah Naidu (supra) that it is a well-recognised
principle which gained judicial recognition that the High
Court should direct the party to avail himself of such
remedies before he resorts to a constitutional remedy.
Further, it is well settled in the decision of Hon’ble Supreme Court
Page No.# 21/23
Virudhunagar Hindu Nadargal Dharma Paribalana Sabai (supra)
that the availability of a remedy under the CPC, will deter the
High Court, not merely as a measure of self-imposed
restriction, but as a matter of discipline and prudence, from
exercising its power of superintendence under the
Constitution.
13. This Court has considered the submissions of Mr. Choudhury, learned
counsel for the petitioner in respect of the decision of a Division Bench of
this Court, in the FAO No 73/2025 [M/s Brahmaputra Distillery &
Anr. Vs. Associated Alcohol and Beverages Company), wherein the
said Notification dated 13.2.2019, was held to be non-est, having no legal
effect or consequence, for reason of having been issued under the
Ordinance 2015, which had been repealed and/or spent its force on
31.12.2015, by the coming into effect of the Act, 2015 from said date.
Notably, the Commercial Court (i.e. the Ld Civil Judge Sr. Division) was
constituted under the Notification dated 13.2.2019. And in view of the
decision of a Division Bench of this Court, in the FAO No 73/2025, the
learned Trial Court, now, has no jurisdiction. But, it appears that the
present suit, however, was instituted by plaintiff prior to the date of the
aforesaid judgment and order dated 18.12.2025. According to Mr.
Choudhury the question of jurisdiction of the learned Trial Court in
continuing the interim order dated 5.12.2025, assumes critical significance
and requires judicial appreciation under Article 227.
14. The submissions of Mr. Choudhury, learned counsel for the petitioner
received due consideration of this Court. But, this Court is unable to record
concurrence to his submission in as much as the issue can be raised before
Page No.# 22/23
the learned appellate forum where the Misc. Appeal U/S 13 of the
Commercial Courts Act, 2015, r/w O.XLIII, Rule 1(r) of the Code, against
the order dated 8.4.2026 passed in Misc. (J) Case No 1119/2025, is
pending.
14.1. Further, in view of the decision of a Division Bench of this Court, in
the FAO No 73/2025, procedural remedy under Order VII Rule 11 CPC,
that allows a court to summarily dismiss a civil suit at the threshold if it
is barred by law, is available. The petitioner herein can file an application
under Order VII Rule 11 CPC, before the learned Trial Court for rejection of
the plaint.
15. Thus, application of aforesaid principles to the given factual matrix of
the case in hand, left no doubt in the mind of this Court that the present
petition is not at all maintainable. It is not maintainable, basically, for
following three reasons:-
(i) The impugned order is an appealable order, in view of Order
43 Rule 1(d) CPC,
(ii) The petitioner has admittedly filed an appeal and the same is
pending adjudication before the appellate forum;
(iii) When alternative remedy is available, it is not open to the
High Court to entertain a petition under Article 227 of the
Constitution.
16. In the result, this Civil Revision Petition is found to be not
maintainable, and accordingly, the same stands dismissed, leaving the
parties to bear their own costs. Before parting with the record, this Court is
inclined to make it clear that the present petition is dismissed only on the
Page No.# 23/23
ground of maintainability, and this Court is not entering into the merit of
the same.
17. However, the petitioner will be at liberty to raise the issue of
jurisdiction before the learned appellate forum. Further, liberty will remain
with the petitioner to raise the issue of jurisdiction before the learned Trial
Court, under Order VII Rule 11 CPC, by filing appropriate petition.
JUDGE
Comparing Assistant
