Kerala High Court
M/S.Rds Projects Ltd vs Laxmi Cranes And Traders Pvt. Ltd on 5 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
FRIDAY, THE 5TH DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943
OP(C) NO. 1568 OF 2020
AGAINST THE ORDER/JUDGMENT IN OS 38/2020 OF PRINCIPAL SUB COURT,
ERNAKULAM
PETITIONER/S:
1 M/S.RDS PROJECTS LTD.,
HEAD OFFICE 427, SOMDUTT CHAMBERS-II, 9, BHIKAJI CAMA PALACE,
NEW DELHI-110066, REP. BY ITS MANAGING DIRECTOR.
2 M/S.RDS PROJECTS LTD.,
REGIONAL OFFICE AT SHIHAB THANGAL ROAD, PANAMPILLY NAGAR,
KOCHI-682036, REP. BY ITS MANAGING DIRECTOR.
BY ADVS.
DEEPU THANKAN
SMT.UMMUL FIDA
SMT.LAKSHMI SREEDHAR
RESPONDENT/S:
1 LAXMI CRANES AND TRADERS PVT. LTD.
BUILDING NO.VII/602-A, KUNDANNOOR, MARADU, KOCHI-682304, REP.
BY ITS DIRECTOR.
2 NHAI REGIONAL OFFICE,
KERALA, TC 86/1036-1, AMBILI ARCADE, SNNRA-9, PETTA P.O.,
TRIVANDRUM-695024, REP. BY ITS PROJECT OFFICER.
BY ADVS.
FOR R1
SRI.C.S.AJITH PRAKASH
SMT.SREEKALA T.N
SHRI.FRANKLIN ARACKEL
SHRI.PAUL.C.THOMAS
SHRI.BABU M
SMT.ANCY THANKACHAN
SHRI.NIDHIN RAJ VETTIKKADAN
SRI.HAARIS MOOSA
SMT.DEVYANI
SRI.MATHEWS K.PHILIP FOR R2
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05.11.2021, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
OP(C) NO. 1568 OF 2020
2
JUDGMENT
Dated this the 5th day of November 2021
The challenge in this original petition is against Ext.P4 order,
restraining the second respondent from disbursing Rs.1,92,06,325/-
due to the petitioners and directing the petitioners to furnish
security to the tune of Rupees Two Crores to satisfy the probable
decree, or to show cause as to why such security should not be
furnished.
2. The short facts leading up to the issuance of Ext.P4 order,
are as under;
The petitioners are the defendants in O.S No.38 of 2020 on
the files of the Sub court, Kochi. The suit is filed by the first
respondent for recovery of Rs.1,92,06,325/- from the defendants
and its assets. Along with the suit, the first respondent filed Ext.P2
application under Order 21 Rule 46 and Order 39 Rule 1 of CPC, to
prohibit the petitioners from recovering an amount of
Rs.1,92,06,325/- due to it from the third respondent and to restrain
the third respondent from paying the said amount to the
OP(C) NO. 1568 OF 2020
petitioners. The first respondent also filed Ext.P3 application under
Order 38 Rule 5 seeking to attach certain vehicles and machineries
belonging to the petitioners. Accordingly, the impugned Ext.P4
order was passed by the trial court.
3. The grievance of the petitioner is that the order is passed
without considering the mandatory requirements under Order 21
Rule 46 and Order 38 Rule 5 of CPC. Alternatively, it is contended
that the Sub Court, Kochi is devoid of jurisdiction to entertain the
suit, since the dispute, between parties falls within the definition of
Commercial Dispute under Section 2(1)(c) of the Commercial
Courts Act ('the Act' for short).
4. In my considered opinion, the challenge is premature inas
much as the petitioners remedy is to show cause against the
proposed attachment. Likewise, as against Ext.P2 order, the
garnishee/third respondent is entitled to show cause under Order
21 Rule 46A. The contention that the dispute is a commercial
dispute under Section 2(1)(c) of the Act, cannot be considered in
these proceedings.
5. Learned counsel for the petitioner submitted that the
OP(C) NO. 1568 OF 2020
amount has already been released to the petitioners and the
garnishee proceedings have become infructuous. It is submitted
that in view of the subsequent developments the petitioners should
be permitted to offer immovable property as security. This
submission ought to be made before the trial court, for which the
petitioners are at liberty.
The original petition is hence disposed of, reserving the
petitioners' liberties, as aforementioned.
Sd/-
V.G ARUN
JUDGE
SJ
OP(C) NO. 1568 OF 2020
APPENDIX OF OP(C) 1568/2020
PETITIONER EXHIBITS
EXHIBIT P1 A TRUE COPY OF THE PLAINT DATED 17.08.2020 IN
O.S.NO.38/2020 PRESENTED ON 26.08.2020 ON THE FILES
OF SUB COURT, KOCHI.
EXHIBIT P2 A TRUE COPY OF THE I.A.NO.1/2020 IN O.S.NO.38/2020
ON THE FILE OF SUB COURT, KOCHI.
EXHIBIT P3 A TRUE COPY OF THE I.A.NO.2/2020 IN O.S.NO.38/2020
ON THE FILE OF SUB COURT, KOCHI.
EXHIBIT P4 A TRUE COPY OF THE ORDER 26.08.2020 IN
I.A.NO.1/2020 IN O.S.NO.38/2020 ON THE FILES OF SUB
COURT, KOCHI.
EXHIBIT P5 A TRUE COPY OF THE NOTIFICATION
GO(MS)NO.51/2020/HOME DATED 24.02.2020.
RESPONDENT EXHIBITS
EXHIBIT R2 A TRUE COPY OF THE LETTER DATED 25.09.2018 ISSUED TO
THE REPONDENT.
EXHIBIT R2 B TRUE COPY OF THE JOINT BID AGREEMENTDATED
18.04.2018
EXHIBIT R2 C TRUE COPY OF THE CONTRACT AGREEMENT DATED
09.10.2018
EXHIBIT R2 D TRUE COPY OF THE RELEVANT PAGE OF IPC/9 PAYMENT
NOTE
EXHIBIT R2 E TRUE COPY OF THE LETTER DATED 14.04.2019 ISSUED TO
AUTHORITIES ENGINEER
EXHIBIT R2 F TRUE COPY OF THE LETTER DATED 31.10.2020 TO THE
PROJECT DIRECTOR PIU NHAI TRIVANDRUM
