Kerala High Court
M/S. Francis Kottackal Exim Pvt. Ltd 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. 541 OF 2024
AGAINST THE ORDER/JUDGMENT DATED IN CS NO.11 OF 2022 OF ASSISTANT
SESSIONS COURT/PRINCIPAL SUB COURT / COMMERCIAL COURT,NORTH
PARAVUR
PETITIONERS/RESPONDENTS/DEFENDANTS :-
1 M/S. FRANCIS KOTTACKAL EXIM PVT. LTD. A PRIVATE
LIMITED COMPANY 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 CHAIRMAN CUM MANAGING
DIRECTOR M/S. FRANCIS KOTTACKAL EXIM PVT. LTD.
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,
DIRECTOR, M/S. FRANCIS KOTTACKAL EXIM PVT. LTD.
HAVING ITS REGISTERED OFFICE AT DOOR NO. 6/321,
KOTTACKAL HOUSE, MATTOOR, KALADY P.O., ERNAKULAM,
KERALA STATE, REPRESENTED BY
K.V.FRANCIS (AUTHORIZED SIGNATORY), PIN - 683574
4 VINCY FRANCIS AGED 55 YEARS W/O. K.V. FRANCIS,
DIRECTOR M/S. FRANCIS KOTTACKAL EXIM PVT. LTD.
HAVING ITS REGISTERED OFFICE AT DOOR NO. 6/321,
KOTTACKAL HOUSE, MATTOOR, KALADY P.O., ERNAKULAM,
KERALA STATE, REPRESENTED BY K.V.FRANCIS
(AUTHORIZED SIGNATORY), PIN - 683574
BY ADV SHAJU FRANCIS
RESPONDENT/S:
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., SHENSHEN,
OP(C) NO. 541 OF 2024
2
MANARI ROAD, KALAI P.O,. KOZHIKODE DISTRICT,
KERALA,, PIN - 673003
BY ADVS. JAISON JOSEPH M.N.SANJITH(S-954)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
27.03.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(C) NO. 541 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.
3. I have heard Sri.Shaju Francis, the learned counsel
OP(C) NO. 541 OF 2024
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. 541 OF 2024
APPENDIX OF OP(C) 812/2024
PETITIONER EXHIBITS :-
Exhibit-P1 A TRUE PRINTED COPY OF THE IMPUGNED ORDER IN
COMM SUIT NO. 12 / 2022 (CS 120/2022) DATED
10/03/2022 PASSED BY THE THEN PRINCIPAL SUB
COURT / COMMERCIAL COURT AT ERNAKULAM, AS
DOWNLOADED FROM THE OFFICIAL WEBSITE OF THE
DISTRICT COURT OF KERALA
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 12/2022
FILED BY THE RESPONDENT /PLAINTIFF ON THE FILE
OF COMMERCIAL COURT/PRINCIPAL SUB COURT, NORTH
PARAVUR (OLD CS NO.120/2022 OF COMMERCIAL
COURT, ERNAKULAM)
Exhibit-P4 A TRUE COPY OF THE I.A.NO.2/2022 IN CS
NO.12/2022 ON THE FILE OF COMMERCIAL
COURT/PRINCIPAL SUB COURT, NORTH PARAVUR (OLD
IA NO.2/2022 IN CS NO.120/2022 OF COMMERCIAL
COURT, ERNAKULAM)UNDER ORDER XXXVIII RULE 5 OF
CPC
Exhibit-P5 A TRUE COPY OF THE WRITTEN STATEMENT FILED BY
THE PETITIONERS / DEFENDANTS IN CS NO.12/2022
ON THE FILE OF COMMERCIAL COURT/PRINCIPAL SUB
COURT, NORTH PARAVUR (OLD CS NO.120/2022 OF
COMMERCIAL COURT, ERNAKULAM)
Exhibit-P6 A TRUE COPY OF THE REPLY TO THE IA NO.2/2022
IN CS NO.12/2022 ON THE FILE OF COMMERCIAL
COURT/PRINCIPAL SUB COURT, NORTH PARAVUR (OLD
IA NO.2/2022 IN CS NO.120/2022 OF COMMERCIAL
COURT, ERNAKULAM)
Exhibit-P7 A TRUE COPY OF THE RESOLUTION DATED 21.06.2022
