M/S Psi Hydraulics vs M/S Jcbl Marrel Tippers Pvt Ltd
2022 Latest Caselaw 8576 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 10TH DAY OF JUNE, 2022

                          BEFORE

         THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD

       MISCELLANEOUS FIRST APPEAL NO.3098/2017 (CPC)

BETWEEN:

M/S PSI HYDRAULICS
HAVING OFFICE AT NO.111
AND 112, 3RD MAIN, II STAGE,
PEENYA INDS. ESTATE,
BANGALORE - 560 058.
REPRESENTED BY ITS PARTNER,
SRI.D.VENKATESH, HINDU MAJOR,
RESIDENT OF BANGALORE.
                                           ... APPELLANT
(BY SRI. KRISHNA SWAMY S, ADVOCATE)

AND:

1.     M/S JCBL MARREL TIPPERS PVT LTD
       PLOT NO.B-7/1,
       SIPCOT INDUSTRIAL PARK ORGADAM,
       VAIPUR-A VILLAGE,
       SRIPERUMBUDUR TALUK,
       KANCHIPURAM DISTRICT - 602 105.

2.     MR SANDIP CHAKRAVATHY
       EXECUTIVE DIRECTOR,
       M/S. JCBL MARREL TIPPERS PVT.LTD.
       PLOT NO.B-7/1,
       SIPCOT INDUSTRIAL PARK ORAGADAM
       VAIPUR-A VILLAGE,
       SRIPERUMBUDUR TALUK,
       KANCHIPURAM DISTRICT - 602 105.
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3.   MR RISHI
     MANAGING DIRECTOR,
     M/S. JCBL MARREL TIPPERS PVT.LTD.
     PLOT NO.B-7/1,
     SIPCOT INDUSTRIAL PARK ORAGADAM
     VAIPUR-A VILLAGE,
     SRIPERUMBUDUR TALUK,
     KANCHIPURAM
     DISTRICT - 602 105.
                                   ... RESPONDENTS
(RESPONDENTS ARE SERVED)


     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER ORDER 43 RULE (1)(a) OF CPC, AGAINST THE
ORDER DATED 03.02.2017 PASSED IN O.S.NO.8642/2011
ON THE FILE OF THE PRINCIPAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU DISTRICT, RETURNING
THE PLAINT TO THE PLAINTIFF UNDER ORDER VII RULE
10 OF CPC.

     THIS MISCELLANEOUS FIRST APPEAL COMING ON
FOR ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                         JUDGMENT

The appellant, who is the plaintiff in O.S.

No.8642/2021 on the file of the XLIV Additional City

Civil and Sessions Judge, Bengaluru [for short, 'the civil

Court'], has impugned the civil Court's order dated

03.02.2017 and the operative portion of this order reads

as under:

"That, for the reasons afore mentioned and acting U/O. VII Rule 10 of CPC, the plaint is hereby ordered to be returned to the plaintiff enabling the plaintiff to prefer the same subject to the provision of Section 22 of Sick Industrial Companies [Special Provisions] Act, 1985."

2. The plaintiff has filed the aforesaid suit for

recovery of a sum of Rs.4,81,994/- along with the

current and future interest @ 18% per annum from the

date of the suit. The plaintiff has also examined one of

its witnesses as PW-1. At this stage, the defendants

have filed an application under Section 22 of Sick

Industrial Companies [Special Provisions] Act, 1985 [for

short, 'the Act']. The defendants-respondents have

stated that the first Defendant is a 'sick industry' and a

reference is registered by the erstwhile Board for

Industrial and Financial Reconstruction [BIFR] in

Proceedings No.45/2015 and the proceedings under

Section 16 of the Act are under way. Therefore, there is

a bar under Section 22 thereof.

3. It is in consideration of this application that

the civil Court has returned the plaint under Order VII

Rule 10 of the Code of Civil Procedure, 1908 [for short,

'the CPC']. Sri. S. Krishnaswamy, the learned counsel

for the appellant, submits that the proceedings before

the BIFR is closed and there is no order for winding up

of the first defendant - respondent either before this

Court or before the National Company Law Tribunal.

The defendant-Company is still in existence. Therefore,

the bar under Section 22 of the Act would not operate.

4. The defendants including the Company

though served have remained absent. If the assertion

that the proceedings before the BIFR are closed and no

winding up orders are passed remains uncontested, this

Court must interfere with the impugned order and set

aside the impugned order restoring the suit for a

decision on merits leaving all questions open for

consideration.

5. At this stage, Sri. S. Krishnaswamy also

submits that with the Commercial Courts Act, 2015, the

suit will have to be referred to the commercial Court.

This submission is taken on record, and with leave to

the appellant to make necessary application for

reference accordingly. For the foregoing, the following:

ORDER

[a] The appeal is allowed;

[b] The impugned order dated 03.02.2017 in

O.S. No.8642/2011 on the file of the XLIV

Additional City Civil and Sessions Judge,

Bengaluru is quashed;

[c] The proceedings in O.S. No.8642/2011 is

restored with leave to the appellant to file

application under the Commercial Courts

Act, 2015 for due consideration.

SD/-

JUDGE AN/-