Gives Kehwah Group 4 weeks to respond
The Jammu and Kashmir High Court (HC) Saturday stayed the order of the Additional District Judge Srinagar restraining Rising Kashmir newspaper and its editor from creating any third party interest regarding its properties and assets.
The order was passed by Justice Ali Muhammad Magray in the appeal filed by Rising Kashmir Editor-in-Chief, Shujaat Bukhari.
Advocate Syed Faisal Qadri appealed on behalf of Rising Kashmir.
Hearing an appeal by the newspaper and its editor against the order, the HC sought the entire record pertaining to the case from the lower court.
The HC also gave a four week’s notice to Kehwah Group.
Rising Kashmir newspaper and its editor had moved High Court against the order of the Additional District Judge Srinagar restraining the newspaper from creating any third party interest regarding to its properties and assets.
The Additional District Judge Srinagar, in March, had passed an order to provide interim relief to Shiekh Imran, proprietor of the Kehwah Group, in his case seeking damages from the newspaper for a news story published in January this year.
The news story ‘RBI asks J&K Bank to declare Kehwah Group fraud’ gave the details of how the Reserve Bank of India (RBI) had asked the Jammu and Kashmir Bank to declare the ‘Kehwah Group’ as a “banking fraud” on the pretext of its Non-Performing Assets (NPAs) to the tune of Rs 130 crore.
As per the news story, the Kehwah Group at that point had denied having any information but a top official in the bank and sources in the RBI had confirmed to Rising Kashmir that a letter had been sent asking for seizure of all assets of the ‘Kehwah Group’ operating in Kashmir and declaring it as a “fraud”.
In the appeal before the High Court, the newspaper had stated that the order of the Additional District Judged Srinagar is bad in law as the court has not considered three principles necessary to be followed while passing the order impugned.
“The trial court has failed to appreciate that while passing the order impugned, it was imperative that for grant of an interim relief in favour of the impugned order, it was required to establish that the respondents (including Sheik Imran) had a prima facie case in their favour, whether the balance of convenience is in favour of passing the order of injunction and whether the respondents (plaintiff therein) would suffer an irreparable injury if an order of injunction could not be passed as prayed for,” the appeal read.
The appeal stated that the case position of the appellants (including the newspaper) was more strengthened against the order as there had been no averment made in the suit or the interim application that the appellants were proposing to dispose of the assets belonging to them in order to avoid the benefit of relief which might be granted in favour of the respondent.
The appeal stated that the order of the trial court was “excessive in nature” as it had called for an attachment of the assets of the appellant.
The appeal while quoting the settled principle of law that states that before a person is entitled to an order of attachment before a judgement, he is required to prove that defendant is about to dispose of the whole or any part of his property.
The appeal then listed two more points which need to be proved before passing an attachment order, which in trial court had not followed while passing the said order.
“Therefore the passing of the order impugned is not only unjustified but also illegal and in violation of the procedure as envisaged under Rule 5 order XXXVIII of CPC,” the appeal reads.
The appeal further stated, “It has been held time and again that an order of attachment before the judgement is a drastic remedy and power has to be exercised with utmost care and caution as it may be likely to ruin the reputation of the parties against whom the power is exercised.”
The appeal read that the attachment before the judgement is not the process to be adopted because the suit is yet to be tried and the defence of the defendant is yet to be tested.
The appeal stated that the trial court while passing the impugned order does not disclose the reasons for reaching to the conclusion of passing the attachment order.
“The perusal of the impugned order would indicate that the trial court has only on the basis of presumption of an irreparable injury to the respondent passed the same (order),” the appeal stated.
The appeal stated the order impugned does not deal with the principles - to be considered while passing such an order - and on this count deserves to be set aside.
The appeal stated that the impugned order has dented the image of the appellants (including the newspaper) as it (order) is being seen as an attachment order in the journalistic circles of the State.
“The impugned order has caused irreparable damage to the appellants,” the appeal read.
Taking into considerations, the prayers of the appellants, the HC stayed the decision of the lower court which has now removed the injunction on the appellants rights vis-à-vis his assets and properties.