Kerala High Court
M/S. Fransko Agro Foods vs Hemraj Industries Private Limited on 27 March, 2024
Author: Kauser Edappagath
Bench: Kauser Edappagath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
WEDNESDAY, THE 27TH DAY OF MARCH 2024 / 7TH CHAITHRA, 1946
OP(C) NO. 811 OF 2024
AGAINST THE ORDER/JUDGMENT DATED 25.03.2023 IN CS NO.10 OF 2022 OF
ASSISTANT SESSIONS COURT/PRINCIPAL SUB COURT / COMMERCIAL
COURT,NORTH PARAVUR
PETITIONERS/RESPONDENTS/DEFENDANTS :-
1 M/S. FRANSKO AGRO FOODS.
A REGISTERED PARTNERSHIP FIRM HAVING ITS REGISTERED
OFFICE AT DOOR NO. 6/321, KOTTACKAL HOUSE, MATTOOR,
KALADY P.O. ERNAKULAM,KERALA STATE, PIN: 683574 THROUGH
ITS MANAGING DIRECTOR & AUTHORISED REPRESENTATIVE
K.V. FRANCIS., PIN - 683574
2 K.V. FRANCIS, AGED 64 YEARS
MANAGING PARTNER M/S. FRANSKO AGRO FOODS HAVING ITS
REGISTERED OFFICE AT DOOR NO. 6/321, KOTTACKAL HOUSE,
MATTOOR, KALADY P.O., ERNAKULAM,
KERALA STATE,, PIN - 683574
3 MELVIN FRANCIS, AGED 35 YEARS
S/O. K.V. FRANCIS, MANAGING PARTNER, M/S. FRANSKO AGRO
FOODS, PERMANENT RESIDENT OF KOTTACKAL HOUSE NAYATHODU,
ANGAMALY, ERNAKULAM, KERALA STATE,REPRESENTED BY
K.V.FRANCIS (AUTHORISED SIGNATORY), PIN - 683574
4 VINCY FRANCIS, AGED 55 YEARS
PARTNER, M/S. FRANSKO AGRO FOODS, W/O.K.V. FRANCIS,
MANAGING PARTNER, M/S. FRANSKO AGRO FOODS, HAVING ITS
REGISTERED OFFICE AT DOOR NO. 6/321, KOTTACKAL HOUSE,
MATTOOR, KALADY P.O., ERNAKULAM, KERALA STATE,
REPRESENTED BY K.V.FRANCIS
(AUTHORISED SIGNATORY), PIN - 683574
BY ADV SHAJU FRANCIS
RESPONDENT/PETITIONER/PLAINTIFF :-
HEMRAJ INDUSTRIES PRIVATE LIMITED
HAVING ITS REGISTERED OFFICE AT 46B, RAFI AHMED KIDWAI
ROAD 1ST FLOOR, P.S. PARK STREET, KOLKATA, WEST BENGAL
- 700016 THROUGH ITS AUTHORISED REPRESENTATIVE,
ABDUL VARISH C.P., S/O. MUHAMMED BASHEER P.V.,
OP(C) NO. 811 OF 2024
2
SHENSHEN, MANARI ROAD, KALAI P.O,. KOZHIKODE
DISTRICT, KERALA, PIN - 673003
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
27.03.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(C) NO. 811 OF 2024
3
JUDGMENT
Exts.P1 and P2 orders passed by the Commercial Court,
North Paravur (for short "Trial Court") are under challenge in
this Original Petition. The petitioners are the defendants and
the respondent is the plaintiff in the suit.
2. The plaintiff moved an application for interim
attachment before the Trial Court. The Trial Court passed
Ext.P1 order under Order XXXVIII Rule 5 of the Code of Civil
Procedure directing the petitioner to furnish security or to
show cause why security shall not be furnished. A conditional
attachment was also granted. Thereafter, the petitioner
entered appearance and filed counter statement opposing
the attachment application. After hearing both sides, the trial
court passed final order under Order XXXVIII Rule 6 of CPC
making the interim attachment absolute. It is challenging
both Exts.P1 and P2, now the petitioners are before this
Court.
OP(C) NO. 811 OF 2024
3. I have heard Sri.Shaju Francis, the learned counsel
for the petitioners.
4. The learned counsel for the petitioners submitted
that Ext.P1 order was passed without complying with sub-
rule (1) of Order XXXVIII and hence it is void. However, the
fact remains that subsequently Ext.P2 order was passed. It is
a final order under Order XXXVIII Rule 6. Hence, Ext.P1 order
merged with Ext.P2. Ext.P2 is appealable.
The remedy open to the petitioners is to file an appeal
against Ext.P2. Reserving the said right, this Original Petition
is dismissed. The petitioners are free to take up all the
contentions raised in this Original Petition in the appeal. The
petitioners are granted two weeks time from the date of
receipt of a copy of this judgment to prefer the appeal.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
SMA
OP(C) NO. 811 OF 2024
APPENDIX OF OP(C) 811/2024
PETITIONER EXHIBITS :-
Exhibit-P1 A TRUE PRINTED COPY OF THE IMPUGNED ORDER
IN COMM SUIT NO. 10/2022 DATED 08/03/2022
(OLD CS NO.121/2022) PASSED BY THE THEN
PRINCIPAL SUB COURT/ COMMERCIAL COURT AT
ERNAKULAM
Exhibit-P2 A TRUE COPY OF THE FINAL ORDER DATED
PASSED BY COMMERCIAL COURT/PRINCIPAL SUB
COURT, NORTH PARAVUR
Exhibit-P3 A TRUE COPY OF THE PLAINT/SUIT CS 10/2022
FILED BY THE RESPONDENT /PLAINTIFF ON THE
FILE OF COMMERCIAL COURT/PRINCIPAL SUB
COURT, NORTH PARAVUR (OLD CS NO.121/2022 OF
COMMERCIAL COURT, ERNAKULAM) DATED
25.02.2022
Exhibit-P4 A TRUE COPY OF THE I.A.NO.2/2022 IN CS
NO.10/2022 ON THE FILE OF COMMERCIAL
COURT/PRINCIPAL SUB COURT, NORTH PARAVUR
(OLD IA NO.2/2022 IN CS NO.121/2022 OF
COMMERCIAL COURT, ERNAKULAM)UNDER ORDER
XXXVIII RULE 5 OF CPC DATED 25.02.2022
Exhibit-P5 A TRUE COPY OF THE WRITTEN STATEMENT FILED
BY THE PETITIONERS / DEFENDANTS IN CS
NO.10/2022 ON THE FILE OF COMMERCIAL
COURT/PRINCIPAL SUB COURT, NORTH PARAVUR
(OLD CS NO.121/2022 OF COMMERCIAL COURT,
ERNAKULAM) DATED 18.05.2022
Exhibit-P6 A TRUE COPY OF THE REPLY TO THE IA
NO.2/2022 IN CS NO.10/2022 ON THE FILE OF
COMMERCIAL COURT/PRINCIPAL SUB COURT, NORTH
OF COMMERCIAL COURT, ERNAKULAM) DATED
OP(C) NO. 811 OF 2024
18.05.2022
Exhibit-P7 A TRUE COPY OF THE RESOLUTION DATED
21.06.2022
