Madras High Court
Pronk Multi Service India Pvt.Ltd vs Camfil Air Filtration India ... on 6 July, 2021
Rev.Appln.No.6 of 2021
in
A.No.5021 of 2018
in
C.S.No.445 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on:01.09.2021 Pronounced on:7.09.2021
Coram::
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN
Review Application No.6 of 2021
in
Application No.5021 of 2018
in
Civil Suit No.445 of 2018
1.Pronk Multi Service India Pvt.Ltd.,
Rep.by its Authorised Signatory
797, Thiruvallur High Road,
Andersonpet, Nemam,
Chennai 600 124.
2.Pronk Multi Service India Pvt.Ltd.,
Rep.by its Authorised Signatory
No.35, Electronic City II Phase,
Industrial Area, Konappana,
Agrahara Village, Beguru Hobli,
Hosur Road, Bengaluru,
Karnataka 560 100. .. Applicants/1st and 2nd respondents/
1st and 2nd Defendants
/versus/
1/18
https://www.mhc.tn.gov.in/judis/
Rev.Appln.No.6 of 2021
in
A.No.5021 of 2018
in
C.S.No.445 of 2018
1.Camfil Air Filtration India Pvt.Ltd.,
Rep.by its Authorised Signatory
Mr.Sanjay Sharma
SF 107/37, Devarayaneri Road,
Asoor Post,Tanjore Highway,
Trichy 620 105, Tamil Nadu. ..1st Respondent/Applicant/Plaintiff
2.Mr.Shailendra Anand
Director, Pronk Multi Service India Pvt.Ltd.,
Rep.by its Authorised Signatory
No.35, Electronic City II Phase,
Industrial Area, Konappana,
Agrahara Village, BeguruHobli,
Hosur Road, Bengaluru,
Karnataka 560 100.
3.Mr.Marcel Pronk
Director, Pronk Multi Service India Pvt.Ltd.,
Rep.by its Authorised Signatory
No.35, Electronic City II Phase,
Industrial Area, Konappana,
Agrahara Village, BeguruHobli,
Hosur Road, Bengaluru,
Karnataka 560 100. ..2nd & 3rd respondents/Respondents/
3rd and 4th Defendants
Prayer: Review Application has been under Order 14, Rule 8 of Madras High
Court original Side Rules Read with Section 114 and Order XLVII, Rule 1 of
CPC, 1908 praying, to review the order dated 06.07.2021 passed in
Appln.No.5021 of 2018 in C.S.No.441 of 2018.
2/18
https://www.mhc.tn.gov.in/judis/
Rev.Appln.No.6 of 2021
in
A.No.5021 of 2018
in
C.S.No.445 of 2018
For Applicants :Mr.Vijay Narayan, Senior Counsel for
Mr.P.Giridharan
For Respondents :Mr.K.Jagannathan
--------
ORDER
(The case has been heard through video conferencing)
The Suit under Commercial Courts Act filed for recovery of
Rs.4,66,68,026.62p together with interest @ 18% p.a thereon from the date of
plaint, till the date of realisation.
2.Suit is by sole plaintiff against four defendants. All the four defendants
are carrying on business outside the territorial jurisdiction of this Court.
3.With a specific averment in the plaint, that the defendants committed
breach of contract in respect of service to pack the equipments of the plaintiff
worthy of transshipment, the suit is filed before the Commercial Division of the
Madras High Court, after obtaining the leave to sue the defendants. Considering
https://www.mhc.tn.gov.in/judis/
Rev.Appln.No.6 of 2021
in
A.No.5021 of 2018
in
C.S.No.445 of 2018
the fact that the equipments were exported from Chennai Port and both the parties
have agreed to submit to the jurisdiction of this Court vide the purchase orders,
leave to sue the defendants were granted under clause 12 of the Letters Patent.
4.Along with the suit, in Application No.5021/2018 filed under Order
XXXVIII, Rule (5) of CPC, the plaintiff also sought for a direction to the
defendants to furnish security to the suit claim of Rs.4,66,68,026.62 to secure the
interest of the applicant/plaintiff. The suit summons for defendants 2 to 4 were
served on 27/07/2018. The suit summons was served for the first defendant on
13/08/2018. Though the case was listed subsequently on several dates, there was
no effective progress. The defendants did not choose to file the written statement
within the limitation period of 30 days or within further period of 90 days as per
time line fixed under Order VIII, Rule (1) of Amended C.P.C. The written
statement was in fact filed with an application to condone delay of 158 days.
5.On 26/06/2019, when the case was listed for further proceedings, the
counsels appearing on either side had sought reference to Mediation to settle the
https://www.mhc.tn.gov.in/judis/
Rev.Appln.No.6 of 2021
in
A.No.5021 of 2018
in
C.S.No.445 of 2018
dispute. Accordingly, the parties were directed to appear before the Mediation and
Conciliation Centre attached to the High Court on 03/07/2019. The attempt to
settle the dispute through Mediation did not fructify, hence, the Mediation and
Conciliation Centre reverted the matter back to the Court on 23/09/2019.
6.On reversion of the matter back to the Court, this Court took up the
condone delay application No.4227/2019 filed by the defendants 1 and 2. In view
of Proviso to Order VIII of Amended Civil Procedure Code, which mandates filing
of written statement within 120 days (30 days without CD petition) + 90 days
with CD petition). Being a non-negotiable provision, vide order dated 04/10/2019
forfeited the defendants right to file written statement and posted the matter before
the Additional Master-1 for recording evidence from 21/10/2019.
7.Before the Additional Master- I, the Plaintiff was present and filed his
proof affidavit in lieu of chief examination. 12 documents were marked as Ex.P-1
to Ex.P-12. Thereafter, there was no progress. The defendants did not cross
examine PW-1, but reported to the Additional Master-I that they have filed
https://www.mhc.tn.gov.in/judis/
Rev.Appln.No.6 of 2021
in
A.No.5021 of 2018
in
C.S.No.445 of 2018
petition to revoke the leave to sue. Hence, the matter came back to the Court
without completing the recording of witnesses deposition.
8.Two applications, Application Nos.485 and 486 of 2021 filed by
defendants 1 and 2, to revoke the leave granted. After considering the reasons
stated for revocation of leave, these two applications were dismissed on
19/04/2021.
9. Thereafter, the case was adjourned for hearing, the application No.5021
of 2018 filed for direction to furnish security. After affording sufficient
opportunity, this Court passed the following order in the Application No.5021 of
2018 on 06.07.2021:-
“Application No.5021 of 2018 is taken out by the plaintiff to
direct the respondents/defendants to furnish security to the suit claim.
2.Though the suit was filed as a commercial dispute, for one
reason or other, the matter has been prolonged for three years. Counter
has not been filed by the respondents/defendants in the furnish security
application. Hence, the respondents/defendants are directed to furnish
security to the suit claim of Rs.4,66,68,026.62p on or before
https://www.mhc.tn.gov.in/judis/
Rev.Appln.No.6 of 2021
in
A.No.5021 of 2018
in
C.S.No.445 of 2018
06.08.2021. Accordingly, Application No.5021 of 2018 is allowed.
3.Call the matter on 09.08.2021”.
10.Being aggrieved by the above order, the petition for Special Leave filed
by the Applicants/defendants before the Hon’ble Supreme Court. In the said
petition, the Hon’ble Supreme Court, on 05.08.2021 had passed the below order:-
“Learned Senior Counsel for the petitioners seeks
permission to withdraw the special leave petition with liberty to
file a review petition in the High Court.
Permission is granted.
The special leave petition is dismissed as withdrawn with
liberty to file a review petition in the High Court. We also reserve
liberty to the petitioners to challenge the order impugned in this
special leave petition, if the order in the review petition is adverse
to the petitioner.”
11.In view of the liberty granted by the Supreme Court, the present review
application is filed mainly on two grounds.
The first ground is, the plaintiff sought for an order of furnishing security
only for a sum of Rs.2,58,01,242.65. However, vide order dated 06/07/2021, this
Court has gone beyond the relief prayed and had ordered security for the whole
https://www.mhc.tn.gov.in/judis/
Rev.Appln.No.6 of 2021
in
A.No.5021 of 2018
in
C.S.No.445 of 2018
suit claim of Rs.4,66,68,026.62/-. This Court cannot grant a relief which is not
claimed. It cannot go beyond the relief prayed. In support of this submission, the
Hon'ble Supreme Court Judgment in Bachhaj Nahar –vs- Nilima Mandal and
another reported in (2008) 17 SCC 491 is relied.
The second ground is, the plaintiff has failed to make out any prima facie
case which may be construed that in any likelihood a decree will be passed in his
favour. The order dated 06/07/2021 does not list out the reasons for making a
finding of apprehension that the defendants will obstruct or delay the execution of
any decree as is categorically required under Order XXXVIII, Rule 5 of Civil
Procedure Code. The order under review does not record any reason for
satisfaction about the intent of the defendants to obstruct or delay the execution of
any decree that may be passed against them. In support of this submission, the
Hon'ble Supreme Court Judgments (i)Raman Tech. & Process Engg. Co –vs-
Solanki Traders : (2008) 2 SCC 302; (ii)Rajender Singh Vs Ramdhar
Singh:(2001) 6 SCC 213; and (iii) Union of India –vs- Ibrahim Uddin: (2012) 8
SCC 148 are relied.
https://www.mhc.tn.gov.in/judis/
Rev.Appln.No.6 of 2021
in
A.No.5021 of 2018
in
C.S.No.445 of 2018
12. This Court, on scrutiny of the records wonders from where the applicant
got the affidavit annexed in the typed set of papers, which is purported to have
been sworn by one Sanjay Sharma, S/o.H.B.Sharma, the authorized representative
of the plaintiff Company M/s.Camfil Air Filtration India Pvt Ltd accompanied by
an application containing prayer for furnishing security towards a sum of
Rs.2,58,01,242.65 (an amount less than the sum mentioned in the order which is
the subject matter of this review application). This affidavit and petition are the
basis for the review applicant to claim that this Court has granted relief exceeding
the relief claimed.
13.The affidavit and application annexed in the typed sets of paper is not the
petition on which this Court passed the order. The affidavit relied by the review
applicant is undated and unsigned. In the jurat portion of that affidavit, it is stated,
‘solemnly affirmed at Chennai on this ....day of April, 2018 and signed his name
in my presence’. The date is blank. The deponent has not signed but an Advocate
by name Mr.G. Elango has signed below the typed letters “Before me”. He has
mentioned his Eenrolment Number as 911/20 and address as No.20, N.K.Lane,
https://www.mhc.tn.gov.in/judis/
Rev.Appln.No.6 of 2021
in
A.No.5021 of 2018
in
C.S.No.445 of 2018
Balaji Nagar, Chennai-59. In Original Side of High Court, Affidavits in the
interlocutory applications are to be accompanied by Judges Summon or Master’s
Summon in a prescribed format under Order 14 of the O.S. Rules and not a
petition merely extracting the prayer portion. In the documents referred and
annexed by the review applicant, the affidavit is accompanied by a petition
extracting the relief portion and not as per the Judges summon format. That apart,
the plaint itself was presented before the Registry only on 29/06/2018. Whereas
the affidavit and petition relied by the review applicant appears to have been
prepared in the month of April 2018, two months prior to the filing of the plaint.
To add, from the Court bundle a document captioned “Counter Affidavit filed by
the respondent Nos.1 and 2” in the name of Mr.Joseph Oliverto, S/o Shri.
Deshmond Oliverto, Authorized Signatory of the first and second respondents is
also available. This document neither signed by the deponent nor attested. In
appears from the jurat portion that this document was prepared during the month
of December 2018, since the date has not been mentioned. However, from the seal
of this Court, we find, this document was filed in the Registry on 29.04.2018.
14.Coming back to the review application, along with the review
https://www.mhc.tn.gov.in/judis/
Rev.Appln.No.6 of 2021
in
A.No.5021 of 2018
in
C.S.No.445 of 2018
application, which is now under consideration, an affidavit sworn by Mr.Joseph
Oliverto is filed to dispense with the filing of the original order copy dated
06.07.2021. In this affidavit of Mr.Joseph Oliverto(Authorised Representative of
the defendants)is attested by same G.ELango, Advocate Enrollment No. 911/2020.
The signature and identity of the attester is identical to the signature and identity
mentioned in the affidavit supposed to have filed on behalf of the plaintiff to
furnish security for a sum of Rs.2,58,01,242.65/-. It is rare and unusual the same
counsel attesting the affidavits of both the plaintiff as well as the defendants.
15.The Application to furnish security, which is the subject matter of this
review was filed on 29th June, 2018 along with the plaint. The affidavit is sworn by
Sanjay Sharma, the Authorised Representative of the Plaintiff Company. The
affidavit dated 29.06.2018 is signed by the deponent along with the seal of the
company. One Indira Ramesh, Advocate No.2 Law Chambers, High Court
Buildings, Enrollment No.1420/2007, has attested the signature of the deponent as
‘Before Me, Advocate Madras.’ In this affidavit, the relief sought is a direction to
the defendants to furnish security to the suit claim of Rs.4,66,68,026.62p. This
https://www.mhc.tn.gov.in/judis/
Rev.Appln.No.6 of 2021
in
A.No.5021 of 2018
in
C.S.No.445 of 2018
affidavit is accompanied with a Judges Summon in the format prescribed under
Original Side Rules, directing all the parties concern to attend the Court on 9th July
2018, to show cause as to why, the Hon’ble Court should not be pleased to direct
the respondents/defendants to furnish security to the suit claim of
Rs.4,66,68,026.62p to secure the interest of the Applicant/plaintiff herein pending
disposal of the suit? This judges summon signed by the Court Officer (OS) on 5th
July, 2018.
16.Based on the document which bears inherent infirmities and falsehood,
the review applicant has filed this review application stating that, this Court has
granted a relief beyond what prayed. Therefore, this Court has no hesitation to
hold that the affidavit and petition produced by the review applicant in the typed
set of papers, to impress upon this Court that, this Court has granted a relief over
and above what prayed, is a fabricated document. The first ground raised to review
the order is therefore not just a false representation but a perjury based on forged
document.
17.The next ground is the omission to list the reasons for believing the
https://www.mhc.tn.gov.in/judis/
Rev.Appln.No.6 of 2021
in
A.No.5021 of 2018
in
C.S.No.445 of 2018
apprehension of the plaintiff. In all the judgments cited as precedents, this Court
finds, the parties have participated in the proceedings by filing their objection to
the applications filed under Order 38 Rule 5 of C.P.C. In those cases, the Courts
had the opportunity of assessing the rival submissions to weigh the same and list
out the reasons. In the instant case, where there is no denial or rebuttal to the
averments in the application to furnish security, the silence of the respondents is
louder than listing reasons.
18.Order 38 Rule 5 of C.P.C., reads as below:-
5. Where defendant may be called upon to furnish
security for production of property -
(1) Where, at any stage of a suit, the Court is satisfied, by
affidavit or otherwise, that the defendant, with intent to obstruct or
delay the execution of any decree that may be passed against him,
—
(a) is about to dispose of the whole or any part of his
property, or
(b) is about to remove the whole or any part of his property
from the local limits of the jurisdiction of the Court,
the Court may direct the defendant, within a time to be fixed by it,
either to furnish security, in such sum as may be specified in
https://www.mhc.tn.gov.in/judis/
Rev.Appln.No.6 of 2021
in
A.No.5021 of 2018
in
C.S.No.445 of 2018
the order, to produce and place at the disposal of the Court, when
required, the said property or the value of the same, or such portion
thereof as may be sufficient to satisfy the decree, or to appear and
show cause why he should not furnish security.
(2) The plaintiff shall, unless the Court otherwise directs,
specify the property required to be attached and the estimated value
thereof.
(3) The Court may also in the order direct the conditional
attachment of the whole or any portion of the property so specified.
[(4) If an order of attachment is made without complying
with the provisions of sub-rule (1) of this rule, such attachment
shall be void.]
19.Thus, under Order 38, Rule (5)(1), the Court satisfaction to order furnish
security is not on the basis of the affidavit alone but also otherwise. The intention
to alienate the property or to remove the property beyond the jurisdiction of the
Court is the matter, which is within the exclusive knowledge of the defendants.
Till such intention gets manifested into a transparent action, it is only an
inferential fact. Intention to alienate or remove the property or otherwise, could be
inferred from the statement or conduct. In other words, the intention is manifested
by words or actions. The review applicant has not filed written statement in time.
https://www.mhc.tn.gov.in/judis/
Rev.Appln.No.6 of 2021
in
A.No.5021 of 2018
in
C.S.No.445 of 2018
They failed in their challenge the order granting leave to sue them. There is no
denial to the apprehension expressed by the plaintiff. It is an admitted fact that,
the defendants are carrying on their business outside the territorial jurisdiction of
this Court and there is no property of the defendant is available within the
jurisdiction of this Court.
20.The apprehension expressed by the plaintiff that if the direction to
furnish security is not ordered, the defendant's will not pay the legitimate due and
will put the plaintiff into great loss and hardship. This valid apprehension not
dispelled even in this review application. In the absence of contra statement by
the defendants, this Court looks at the conduct of the defendants to test, whether
the apprehension expressed by the plaintiff is real or only an illusion. In the
instant case all the defendants, are carrying on business outside the territorial
jurisdiction of this Court. The defendants first opted to settle the dispute through
Mediation and then took applications to revoke the leave. Now, they seek review
of the order which directed them to furnish security to the extent of the suit claim,
relying upon a ranked forged documents.
https://www.mhc.tn.gov.in/judis/
Rev.Appln.No.6 of 2021
in
A.No.5021 of 2018
in
C.S.No.445 of 2018
21. In view of the above facts, this Court list out the reasons as under, for its
order directing the defendants to furnish security.
(a).The defendants have lost the right to file written statement and the
prospect of succeeding the suit is remote, unless they are able to discredit the
plaintiffs witnesses and documents in the cross examination.
(b).The defendants and their properties are outside the territorial
jurisdiction of this Court. In case, the plaintiff succeeds, the possibility of delaying
the execution of the decree is not ruled out.
(c).The defendants have not come forward by way of statements or by
conduct to dispel the apprehension of the plaintiff.
(d).The conduct of the defendants protracting the proceedings under
different pretest and filing fabricated document to mislead the Court, lend enough
support to the apprehension of the plaintiff.
22. In the result, the order dated 06.07.2021 passed in Application No.5021
https://www.mhc.tn.gov.in/judis/
Rev.Appln.No.6 of 2021
in
A.No.5021 of 2018
in
C.S.No.445 of 2018
of 2018 is reiterated through the detailed order passed in this review application.
Accordingly, the Review Application is dismissed. No order as to costs.
07.09.2021
Index : Yes/No.
Internet : Yes/No.
ari
https://www.mhc.tn.gov.in/judis/
Rev.Appln.No.6 of 2021
in
A.No.5021 of 2018
in
C.S.No.445 of 2018
DR.G.JAYACHANDRAN,J.
ari
Pre-delivery order made in
Review Application No.6 of 2021
in
Application No.5021 of 2018
in
Civil Suit No.445 of 2018
07.09.2021
https://www.mhc.tn.gov.in/judis/
