Judgment · High Court

S / RE S PONDENTS/DEFENDANTS :- 1 2 3 4 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 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 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 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.

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.

I have heard Sri. Shaju Francis, the learned counsel OP(C) NO. 541 OF 2024 4 for the petitioners.

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 5 APPENDIX OF OP(C) 541/2024 PETITIONER EXHIBITS :- Exhibit-P1 Exhibit-P2 Exhibit-P3 Exhibit-P4 Exhibit-P5 Exhibit-P6 A TRUE PRINTED COPY OF THE IMPUGNED ORDER IN COMM SUIT NO. 11 / 2022 DATED 10/03/2022(OLD NUMBER CS NO.127/2022) PASSED BY THE THEN PRINCIPAL SUB COURT / COMMERCIAL COURT AT ERNAKULAM, AS DOWNLOADED FROM THE OFFICIAL WEBSITE OF THE DISTRICT COURT OF KERALA A TRUE COPY OF THE FINAL ORDER DATED 25/03/2023 IN IA NO.2/2022 IN CS NO.11/2022 PASSED BY COMMERCIAL COURT/PRINCIPAL SUB COURT, NORTH PARAVUR A TRUE COPY OF THE PLAINT/SUIT CS 11/2022 FILED BY THE RESPONDENT /PLAINTIFF ON THE FILE OF COMMERCIAL COURT/PRINCIPAL SUB COURT, NORTH PARAVUR (OLD CS NO.127/2022 OF COMMERCIAL COURT, ERNAKULAM) A TRUE COPY OF THE I.A.NO.2/2022 IN CS NO.11/2022 ON THE FILE OF COMMERCIAL COURT/PRINCIPAL SUB COURT, NORTH PARAVUR (OLD IA NO.2/2022 IN CS NO.127/2022 OF COMMERCIAL COURT, ERNAKULAM)UNDER ORDER XXXVIII RULE 5 OF CPC A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONERS / DEFENDANTS IN CS NO.11/2022 ON THE FILE OF COMMERCIAL COURT/PRINCIPAL SUB COURT, NORTH PARAVUR (OLD CS NO.127/2022 OF COMMERCIAL COURT, ERNAKULAM) A TRUE COPY OF THE REPLY TO THE IA NO.2/2022 IN CS NO.11/2022 ON THE FILE OF COMMERCIAL COURT/PRINCIPAL SUB COURT, NORTH PARAVUR (OLD IA NO.2/2022 IN CS NO.127/2022 OF COMMERCIAL COURT, ERNAKULAM) Exhibit-P7 A TRUE COPY OF THE RESOLUTION DATED 21.06.2022