Kerala High Court
M/S Unifab Latest Technologies Pvt. Ltd vs M/S Intrans Electro Components Pvt. Ltd on 1 November, 2024
O.P.(C).No.1093 of 2024 1
2024:KER:81233
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
FRIDAY, THE 1ST DAY OF NOVEMBER 2024 / 10TH KARTHIKA, 1946
OP(C) NO. 1093 OF 2024
AGAINST THE ORDER/JUDGMENT DATED 31.01.2024 IN CS
NO.17 OF 2022 OF ASSISTANT SESSIONS COURT/PRINCIPAL SUB
COURT / COMMERCIAL COURT,NORTH PARAVUR
PETITIONER/PLAINTIFF:
M/S UNIFAB LATEST TECHNOLOGIES PVT. LTD
HAVING ITS REGISTERED OFFICE AT SHISHIRAM, 1120-
A1, BALAKRISHANA MENON ROAD, EDAPPALLY P.O.,
ERNAKULAM, REPRESENTED BY ITS DIRECTOR SRI.
ARAVINDAKSHAN NAIR K.E, PIN - 682024
BY ADVS.
ANIL S.RAJ
K.N.RAJANI
RADHIKA RAJASEKHARAN P.
ANILA PETER
SIMI S. ALI
ARSHID.M.S.
BAHADUR SHAH ANAKKOT NASIRALI
ASHNA T ASHIK
RESPONDENT/DEFENDANT:
M/S INTRANS ELECTRO COMPONENTS PVT. LTD
38/1690, MAVELI ROAD, GANDHI NAGAR, ERNAKULAM,
REPRESENTED BY ITS HEAD OF OPERATIONS, SRI.
SATHYAJITH, AGED 48 YEARS, D/O KRISHNANKUTTY,
RESIDING AT ALWAYE, ERNAKULAM DISTRICT, PIN -
682020
BY ADVS.
O.P.(C).No.1093 of 2024 2
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K.P.SREEKUMAR
P.M.SATHEESH(K/1066/2001)
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON
01.11.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(C).No.1093 of 2024 3
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VIJU ABRAHAM, J.
--------------------
O.P.(C).No.1093 of 2024
--------------------------------
Dated this the 1st day of November, 2024
JUDGMENT
The above original petition is filed challenging
Ext.P4 order whereby Ext.P2 application filed as IA
No.6 of 2023 in CS No.17 of 2022 seeking a
direction to the petitioner company to produce the
minutes book was allowed.
2. It is contended that the petitioner is the
plaintiff in the suit for recovery of possession of
immovable property numbered as CS No.17 of 2022 on
the files of the Commercial Court (Additional Sub
Judge), North Pravur and the defendant therein is
the respondent herein. It is contended in the
plaint averment that the plaint schedule property
is purchased using fund invested and availed as
loan from one Aravindakshan Nair K.E and
M.N.Janardhanan Nambiar for the purpose of
establishing a factory for the plaintiff was sold
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on 29.2.2008 by executing a sham sale deed No.1161
of 2008 of Aluva Sub Registry to the defendant
company whose majority share is held by
Sri.K.S.Gopalakrishnan, a close relative of
Sri.N.Krishnakumar. Since the plaintiff company
on 7.12.2007 was struck off by the Registrar of
Companies the sale of the plaint schedule property
on 29.2.2008 to the defendant company is illegal
and fraudulent. Later, the company was reinstated
only vide Order in TCP/40/KOB/2019 dated 15.12.2021
of the National Company Law Tribunal, Kochi Bench.
The sale of the property was done without obtaining
sanction of the members of the Company in the
General Body Meeting. While so, the respondent
preferred I.A.No.6 of 2023 seeking a direction to
the respondent therein (petitioner herein) to
produce the Minutes book maintained by the
plaintiff company for recording the resolutions of
Board of Directors including the resolution dated
3.12.2007.
3. The petitioner herein filed a detailed
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counter affidavit contending that there was no
valid board meeting as averred and hence there was
no resolution passed by the company to sell the
land. It is also contended that the resolution
produced by the petitioner company is fabricated
and the directors of the respondent company were
not aware or put to notice of such a Board meeting
and hence it is not possible for producing a
document, that is non-existing. It is the case of
the petitioner that the court below by a non
speaking order allowed IA No.6 of 2023 and directed
the petitioner to produce the minutes book, that is
nonexistent. It is further contended that the
petition is filed under Section 151 of CPC whereas
there is a specific provision for production of
documents under Order 11 Rule 14 CPC. It is the
further contention of the petitioner that at the
best the court ought to have directed the
petitioner herein to produce the document or on
file affidavit.
4. The respondent resisted the contention of the
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petitioner by filing a detailed counter affidavit
contended that the petitioner company purchased 35
cents of land in Re-survey No.188/4, Block No.35 of
Aluva East Village from the respondent company as
per sale deed No.1161 of 2008 dated 29.2.2008 of
Sub Registrar, Aluva and the sale deed was executed
totally in compliance of the resolution dated
3.12.2007 of the Board of Directors of the
respondent company and the property was sold to the
petitioner company for a consideration of Rs.48
lakhs and Sri.N.Krishnakumar, Managing Director was
authorised to sign and execute necessary documents
on behalf of the petitioner company for registering
the document. It is further contended that the
payment towards the sale consideration was effected
as per cheque number 003137 dated 23.02.2008 drawn
on the State Bank of Travancore, M.G Road Branch,
Ernakulam and the said amount was encashed by the
respondent company and has appropriated the
proceeds received out of the sale transaction. The
learned counsel for the respondent submits that
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Ext.P1 plaint it is admitted that though sale
consideration has been paid, the same was not
received or used for the respondent company, but
was diverted to clear off the liabilities of
Sri.N.Krishnakumar and his family and there is also
an unaccounted portion of the actual sale
consideration received and which was not shown in
the Sale deed or remitted to the account of the
respondent company making the sale transaction an
act of fraud on the respondent company. On the
basis of the said averment in the plaint it is
contended by the learned counsel appearing for the
respondent that the sale and payment of
consideration is admitted, but their only case is
that the amount has been misappropriated by
N.Krishnakumar and his family. It is further
contended that the sale deed was executed based on
the resolution dated 3.12.2007 of the Board of
Directors of the petitioner company and the said
document is absolutely necessary for just and
proper disposal of the original suit and therefore,
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no interference is called for on Ext.P4 order.
5. I have considered the rival contention on
both sides.
6. What is requested for is production of
minutes book maintaining by the company for
recording the resolutions of the Board of Directors
including the resolution dated 3.12.2007 based on
which the sale deed was executed.
7. The petitioner has filed a detailed
objection to the said petition stating that the
resolution which was passed in the alleged Board
meeting held on 3.12.2007 is forged one and that
they cannot be compelled to produce the document,
that is non-existing. A perusal of Ext.P4 would
reveal that what is sought to be produced is the
minutes book for the period including 3.12.2007
which would enable the court to find out as to
whether there is a resolution dated 3.12.2007 and
the court directed the petitioner company to
produce the minutes book.
8. The learned counsel for the respondent
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brought to my notice an unreported judgment in
OP(C) No.537 of 2019 dated 8.3.2019 wherein it is
held that the practice of adjudicating the
relevancy of the documents sought to be produced at
the interlocutory state of the suit or proceeding
may not be warranted in every case. In the said
circumstance, the Court has observed that the trial
court could dispose of the interlocutory
applications directing the respondent to produce
the documents sought to be produced, or in the
alternative, to file an affidavit indicating the
reasons for non-production, so as to enable the
court to take a decision as to whether an adverse
inference should be made on the facts of the case
at a later stage of the proceedings. A perusal of
Ext.P4 order would reveal that such opportunity to
file an affidavit regarding the nonexistence of the
document sought to be produced was not given to the
petitioner.
9. In the above said circumstance, the
original petition is disposed of as follows: If the
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petitioner has a case that the said document which
is sought to be produced as per Ext.P4 is
nonexistent, the trial court shall give an
opportunity to the petitioner to file an affidavit
in this regard and thereafter proceed with the
matter in accordance with law.
With the said observation, the original
petition is disposed of.
sd/-
VIJU ABRAHAM,JUDGE
pm
2024:KER:81233
APPENDIX OF OP(C) 1093/2024
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE PLAINT IN C.S NO:
17/2022 ON THE FILES OF THE HON'BLE
COMMERCIAL COURT, NORTH PARAVUR DATED
28.2.2022
Exhibit P2 TRUE COPY OF THE I.A NO:6/2023 IN C.S
NO: 17/2022 PREFERRED BY THE RESPONDENT
HEREIN BEFORE THE HON'BLE COMMERCIAL
COURT, NORTH PARAVUR DATED 23.6.2023
Exhibit P3 TRUE COPY OF THE COUNTER FILED BY THE
PETITIONER HEREIN IN I.A NO: 6/2023 IN
C.S NO: 17 OF 2022 BEFORE THE HON'BLE
COMMERCIAL COURT, NORTH PARAVUR DATED
11.10.2023
Exhibit P4 TRUE COPY OF THE ORDER IN I.A NO: 6/2023
IN C.S NO: 17/2022 PASSED BY THE HON'BLE
COMMERCIAL COURT, NORTH PARAVUR DATED
31.1.2024
Exhibit P5 TRUE COPY OF THE WRITTEN STATEMENT IN
C.S NO: 114/2022 ON THE FILES OF THE
HON'BLE COMMERCIAL COURT, ERNAKULAM
(RENUMBERED AS C.S NO: 17/2022 ON THE
FILES OF THE HON'BLE COMMERCIAL COURT,
NORTH PARAVUR) DATED 18.05.2022
