Kerala High Court
Prime Surgicals And Distributors vs State Bank Of India on 22 October, 2024
OP(C)NO.2052 OF 2024
1
2024:KER:79321
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
TUESDAY, THE 22ND DAY OF OCTOBER 2024 / 30TH ASWINA, 1946
OP(C) NO. 2052 OF 2024
AGAINST THE ORDER DATED 06.09.2024 IN COMMERCIAL SUIT NO.4 OF 2023
OF COMMERCIAL COURT, ALAPPUZHA
PETITIONER/DEFENDANT:
PRIME SURGICALS AND DISTRIBUTORS
PROPRIETOR, SAJEEV JOSEPH PARATHARA S/O JOSEPH ROCKEY AGED
48 YEARS, PARATHARA HOUSE, POOMKAVU, PATHIRAPALLY P.O,
ALAPPUZHA, PIN - 688521
BY ADV R.AZAD BABU
RESPONDENT/PLAINTIFF:
STATE BANK OF INDIA
VANDANAM BRANCH, REPRESENTED BY CHIEF MANAGER, RETAIL ASSETS
SMALL AND MEDIUM ENTERPRISES CITY CREDIT CENTER RASMEC,
FIRST FLOOR, KALLUPALATHIL BUILDING, CCSB ROAD, IRON BRIDGE
P.O., ALAPPUZHA, PIN - 688011
BY ADV JAWAHAR JOSE
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22.10.2024, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C)NO.2052 OF 2024
2
2024:KER:79321
JUDGMENT
1. The defendant in a suit for recovery of money is the
petitioner herein.
2. The Original Petition is filed challenging Ext.P5 order, by which
his objection as to the maintainability of the suit was rejected.
The objection was that the suit is not maintainable since the
plaintiff filed I.A.No.1/2023 unnecessarily seeking arrest of the
defendant without any ground or reason only to bypass Section
12A of the Commercial Courts Act, 2015 (for short, the Act),
which makes pre-litigation mediation mandatory for the suit.
and the Act.
3. The respondent has filed a Counter Affidavit opposing the
prayers in the Original Petition.
4. The learned counsel for the petitioner invited my attention to
I.A.No.1/2023, which is produced as Ext.P2, in which vague
averments are made in support of the application for arrest of
the defendant before judgment. The statement is that the
defendant is about to abscond and leave the local limits of the
OP(C)NO.2052 OF 2024
2024:KER:79321
jurisdiction of the court, and he is going to leave India forever
and leave the local limits of the jurisdiction of the court in order
to delay the execution of the decree, which is going to be
passed against him. How the defendant came to know such
information is not disclosed in the affidavit. In the affidavit, it
is stated that on further enquiry after getting the above
knowledge, information was received from one real estate
agent, Anil Kumar, Alleppey. The learned counsel invited my
attention to the decision of the Hon'ble Supreme Court in
Yamini Manohar v. T.K.D. Keerthi [2023 SCC OnLine SC
1382] in which it is specifically held by the Hon'ble Apex Court
that the prayer for urgent interim relief should not be a
disguise or mask to wriggle out of or get over Section 12A of
the Act and that the Court should satisfy from the plaint and
the documents that there is need for urgent interim relief.
5. The learned counsel for the respondent invited my attention to
Ext.P2, in which it is stated that the information is received
from Anil Kumar, Alleppey, that the defendant is going to
OP(C)NO.2052 OF 2024
2024:KER:79321
abscond from the local limits of jurisdiction. It is also pointed
out that the contention on the strength of Section 12A of the
Act was raised only when the suit was listed for trial on
08.08.2024.
6. It is clear from Ext.P2 Application that the respondent/plaintiff
filed the Application with vague details without including the
material details as to how the plaintiff received the initial
information to cause it to make further enquiry. Even though
no order was passed on Ext.P2 application, the defendant is
still available within the local limits of the jurisdiction of the
Trial Court. The plaintiff did not press for orders on Ext.P2 even
after the appearance of the defendant. Going by the aforesaid
decision cited by the learned counsel for the petitioner, there
is a duty on the Trial Court to verify whether there is a real
need for an urgent interim relief in a case filed under the
provision of the Act to dispense with the mandatory pre-
litigation mediation. It appears that the Trial Court has not
undertaken such an enquiry. The Trial Court should not have
OP(C)NO.2052 OF 2024
2024:KER:79321
entertained Ext.P2 Application for arrest before judgment
which lacks material pleading in support of the same. But, as
revealed from the counter affidavit filed by the respondent, the
suit was instituted on 13.04.2023. Though the defendant filed
a written statement raising the above objection, he actively
participated in the proceedings of the suit. As per the order
dated 12.07.2023, the parties were referred to mediation. On
14.08.2023, the parties appeared before the mediator. The
issues were framed on 03.11.2023. No issue was framed with
regard to the contention raised by the defendant on the
strength of Section 12A of the Act. The defendant did not
choose to file an application to frame an additional issue with
regard to the maintainability of the suit. The plaintiff filed
I.A.No.4/2024 to amend the plaint. The defendant also filed
I.A.No.5/2024 to amend the written statement and the same
was allowed on 19.06.2024. So without pressing for a hearing
on the maintainability of the suit, the defendant actively
participated in the proceedings of the suit. Only when the suit
OP(C)NO.2052 OF 2024
2024:KER:79321
was listed for trial on 08.08.2024, the defendant pressed for
hearing on the maintainability issue raised in the written
statement. The defendant could not be permitted to raise such
a maintainability issue when the suit is listed for trial. In fact,
the purpose of Section 12A of the Act is to have pre-litigation
mediation. The parties have gone for a mediation as per the
order of the Trial Court.
7. In view of the above circumstances, even though I am of the
view that the Ext.P2 Application is filed only to bypass Section
12A of the Act since the defendant did not press for a hearing
on the maintainability issue at the earliest available
opportunity, I dismiss this Original Petition.
Sd/-
M.A.ABDUL HAKHIM
Shgxx JUDGE
OP(C)NO.2052 OF 2024
2024:KER:79321
APPENDIX OF OP(C) 2052/2024
PETITIONER EXHIBITS
ExhibitP1 A TRUE COPY OF THE AMENDED PLAINT IN CS NO. 4 OF
2023 DATED 27/06/2024
ExhibitP2 THE TRUE COPY OF IA. NO. 1 OF 2023 DATED
12/04/2023 FILED BY THE RESPONDENT AGAINST THE
PETITIONER
ExhibitP3 THE TRUE COPY OF THE WRITTEN STATEMENT DATED
29/05/2023
ExhibitP4 THE TRUE COPY OF THE OBJECTIONS TO IA NO. 1 OF
2023 DATED 29/05/2023 FILED BY THE PETITIONER
ExhibitP5 THE TRUE COPY OF THE ORDER DATED 06/09/2024
PASSED BY THE LEARNED COMMERCIAL COURT JUDGE IN
CS NO. 4 OF 2023 OF THE HON. COMMERCIAL COURT,
ALAPPUZHA
