Madras High Court
J.Manikandan vs M/S. Goodwin Pumps India (P) Ltd on 28 October, 2024
Author: M.Sundar
Bench: M.Sundar
O.S.A (CAD) Nos.92 and 93 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.10.2024
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI
O.S.A (CAD) Nos.92 and 93 of 2023
&
C.M.P.Nos.16732 and 16831 of 2023
in
O.S.A (CAD) Nos.92 and 93 of 2023
1. J.Manikandan
2. Usha Rani ... Appellants
in both appeals
Vs.
1. M/s. Goodwin Pumps India (P) Ltd.,
(Formerly Known as Ms.Godwin India (P) Ltd.,)
Represented by its Authorized Signatory
K.Kalyanaraman
Currently at
No.112/1, Chinna Amman Koil Street
Kalavakkam, Thiruporur
Kancheepuram District
2. M/s.Goodwin PLC
Represented by its Authorised Signatory
Goodwin PLC
IVY House Foundary, Hanley
Stoke-On-Trent,Staffordshire
STI 3 NR, United Kingdom
3. Senthil Kumar
No.19, Gandhi Mati Street
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1/10
O.S.A (CAD) Nos.92 and 93 of 2023
Vetri Nagar, Chennai - 600 082 .. Respondents
(3rd respondent set ex parte)
(R3 Given up)
Prayer in O.S.A (CAD) No.92 of 2023 : Original Side Appeal filed
under Order 36 Rule 1 of Original Side Rules against the judgment and
common decree dated 10.01.2023 in C.S.No.633 of 2015.
Prayer in O.S.A (CAD) No.93 of 2023 : Original Side Appeal filed
under Order 36 Rule 1 of Original Side Rules against the order dated
10.01.2023 in A.No.3814 of 2022 in C.S.No.633 of 2015.
For Appellant : Mr.V.Selvaraj
for Mr.D.Prabhu Mukunth Arun Kumar
For Respondents : Ms.Suba Shiny for R1 and R2
JUDGMENT
(Judgment of the Court was delivered by M.Sundar, J.)
This common order will now dispose of the captioned two
'Original Side Appeals' ['OSAs' in plural and 'OSA' in singular for the
sake of brevity] and captioned two 'Civil Miscellaneous Petitions'
['CMPs' in plural and 'CMP' in singular for the sake of brevity] thereat.
2. Factual matrix in a nutshell is that a suit in C.S.No.633 of
2015 was instituted in the Commercial Division of this Court against
three individuals arraying the three individuals as Defendants 1 to 3 [D1,
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O.S.A (CAD) Nos.92 and 93 of 2023
D2 and D3 for the sake of convenience]; that two plaintiffs are, a
company incorporated in India and an entity in United Kingdom; that
plaintiffs are in the business of manufacturing special type of abrasive
resistant submersible slurry pumps; that it is the case of the plaintiffs that
the slurry pumps are products of skilled engineering; that D1 sometime in
October 2006 applied for a job in the first plaintiff Company [to be noted,
first plaintiff is the Company incorporated in India]; that D1 was
appointed; that it is the case of the plaintiff that D1 even while in service
of the first plaintiff had registered a Limited Liability Partnership in the
name and style 'FLOWEZYY' along with D2 and D3; that 'FLOWEZYY'
shall be referred to as 'said LLP' for convenience (to be noted, 'LLP'
denotes 'Limited Liability Partnership'); that said LLP started
manufacturing and selling spares for the slurry pumps manufactured by
plaintiffs; that this led to the aforementioned suit in C.S.No.633 of 2015;
that in the suit, damages towards loss of business, loss of reputation and
breach of confidentiality in a sum of little over Rs. 1.64 Crores
(Rs.1,64,01,517 to be precise), permanent injunctions restraining the
defendants, their men, agents, employees from using the domain name
'Goodwin' with or without any suffixes or prefixes, restraining the
defendants from claiming to be the representatives of the plaintiffs and
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O.S.A (CAD) Nos.92 and 93 of 2023
restraining the defendants from dealing with the clients and customers of
the plaintiffs was sought; that D1 and D2 entered appearance; that D1
filed a written statement and D2 filed a adoption memo adopting the
written statement of D1; that D3 remained ex parte; that at this stage,
before framing of issues, plaintiffs resorted to Order XIII-A of 'the Code
of Civil Procedure, 1908 (Central Act V of 1908)' [hereinafter 'CPC' for
the sake of brevity] and sought summary judgment; that the summary
judgment application is A.No.3814 of 2022; that summary judgment as
regards prayer paragraphs (b) to (e) were decreed; that it is to be noted
that paragraphs (b) to (d) constitute the three injunctions set out in the
earlier part of this narrative and paragraph (e) is for costs; that consequent
to such an order dated 10.01.2023 in the Order XIII-A summary
judgment application, a decree in the suit in terms of plaint prayers (b) to
(e) was drawn up; that assailing the order in the summary judgment
application and the decree in the main suit, captioned two OSAs have
been preferred; that in the captioned two OSAs, Hon'ble predecessor
Bench recorded that a counsel is accepting notice for all three
respondents but today Ms.Suba Shiny, learned counsel submits that she
accepted notice only for Respondents 1 and 2 (plaintiffs before the
Commercial Division and not for R3 who was D3 before the Commercial
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O.S.A (CAD) Nos.92 and 93 of 2023
Division); that this is understandable; that it is to be noted that the
summary judgment / decree is as against D3 also; that the appeals are on
Board today.
3. In the hearing today, Mr.V.Selvaraj, learned counsel
appearing for Mr.D.Prabhu Mukunth Arun Kumar, counsel on record for
the appellants (to be noted, D1 and D2 are appellants) and Ms.Suba
Shiny, learned counsel for R1 and R2 (to be noted, the two plaintiffs or in
other words, plaintiffs 1 and 2 are R1 and R2 respectively) are before us.
4. Before we plunge into the matter, it is necessary to set out
the broad contours of scope of summary judgment under Order XIII-A of
CPC. Order XIII-A of CPC was brought in by 'The Commercial Courts
Act, 2015 [Act 4 of 2016]' {hereinafter 'CCA' for the sake of brevity} on
and from 23.10.2015. This Order XIII-A provides for summary
judgments before framing of issues in cases where the Court considers
that either the plaintiff has no real prospects of succeeding on the claim or
the defendant has no real prospects of successfully defending the claim.
Obviously, in the case of former, the plaintiff will be non-suited and in
the case of latter, the suit will be decreed. It is to be noted that under
Order XIII-A of CPC, claims include part of the claim and therefore,
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O.S.A (CAD) Nos.92 and 93 of 2023
decreeing a part of the suit is clearly permissible.
5. In the light of learned counsel for R1 and R2 making it clear
that she has not accepted notice for R3, learned counsel for appellants
made an endorsement in the case file saying that they are giving up R3 in
two captioned OSAs as well as two captioned CMPs thereat and scanned
reproduction of the endorsements are as follows:
Endorsement in O.S.A (CAD) No.92 of 2023
Endorsement in O.S.A (CAD) No.93 of 2023
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O.S.A (CAD) Nos.92 and 93 of 2023
6. This Court, having set out the broad contours of summary
judgment under Order XIII-A of CPC and the trajectory the matter has
taken before us, now deems it appropriate to write that a short point falls
for consideration.
7. In the order in the summary judgment application
A.No.3814 of 2022 or in the summary judgment in C.S.No.633 of 2015,
the Commercial Division has not recorded that the defendants do not
have any real prospect of successfully defending the claim. From the
submissions made at the Bar and on perusal of the case file, it comes to
light that it is not a mere case of not recording that the defendants do not
have no real prospect of successfully defending the claim but it is a case
of not having gone through the legal drill of ascertaining whether the
defendants have real prospect of successfully defending the claim. On
the contrary, the impugned order in the summary judgment application
and the impugned decree proceed on the merits of the plaintiffs' claim.
Therefore, we deem it appropriate to interfere with the impugned order
and impugned summary judgment/decree.
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O.S.A (CAD) Nos.92 and 93 of 2023
8. At this juncture, learned counsel on both sides who had
earlier fairly agreed to have the main OSAs taken up (in the light of R3
being given up) fairly agreed for having the matter remanded to the
Commercial Division for fresh disposal of the summary judgment
application.
9. In this scenario, the following order is made:
a) Order dated 10.01.2023 in A.No.3814 of 2022
in C.S.No.633 of 2015 and summary judgment in terms of
sub-paragraphs (b) to (e) of prayer paragraph 29 in
C.S.No.633 of 2015 which is also dated 10.01.2023 are set
aside;
b) It is made clear that the impugned order and
impugned judgment and decree are set aside on the short
point that the exercise of ascertaining and recording
satisfaction as to whether the defendants have any real
prospect of successfully defending the claim has not been
gone into, therefore post remand, all questions are left open;
c) A.No.3814 of 2022 shall now stand remanded
to the Commercial Division for de novo disposal. We make
it cleat that all questions are left open and it would be a de
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O.S.A (CAD) Nos.92 and 93 of 2023
novo legal drill before the Commercial Division;
d) As regards any other application by either of the
parties to the suit, we express no opinion and we leave it to
the discretion of the Commercial Division to deal with the
same on its own merits and in accordance with law.
Captioned two OSAs are disposed of in the aforesaid manner
with the aforesaid directions, observations and preservation of rights.
Consequently, captioned two CMPs are disposed of as closed. There
shall be no order as to costs.
(M.S.J.) (K.G.T.,J.)
28.10.2024
Index:Yes/No
Neutral Citation: Yes/No
gpa
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O.S.A (CAD) Nos.92 and 93 of 2023
M.SUNDAR.J.,
and
K.GOVINDARAJAN THILAKAVADI, J.,
gpa
O.S.A (CAD) Nos.92 and 93 of 2023
28.10.2024
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