Madras High Court
Shanita Holdings Sdn vs Shanita Hotel Trichy Pvt. Limited on 13 February, 2009
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.02.2009 CORAM: THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.R.P.(PD).No.3911 of 2008 and M.P.No.1 of 2008 1.Shanita Holdings SDN, BHD, Malaysia, No.3, Jalan 12/9, 46200, Petaling Jaya Selangor, Malaysia. 2.A.Sekararajasekaran ... Petitioners Vs. 1.Shanita Hotel Trichy Pvt. Limited, No.9, First Cross Street, Karpagam Gardens, Adayar, Chennai 600 020, Rep by its Signatory Mr.K.Kamesh Kamath 2.S.Alagurajan ... Respondents Prayer: Petition filed under Article 227 of the Constitution of India against the order dated 11.06.2008 passed by the learned XV Assistant City Civil Court, Chennai in I.A.No.8812 of 2008 in O.S.No.3737 of 2008. For Petitioners : Mr.A.K.Mylsamy For Respondents : Mr.N.R.Chandran, Senior Counsel for Mr.K.Ramasamy for R 1 Mr.L.G.Sahadevan for R 2 ORDER
The Civil Revision petitioners/R2 and R3/D2 and D3 have filed this civil revision petition as against the order dated 11.06.2008 in I.A.8812/08 in O.S.3737/08 passed by the learned XV Assistant City Civil Judge, in granting ad interim injunction till 17.06.2008, on an application filed by the first respondent/petitioner/plaintiff under Or.XXXIX R.1 and 2 of the Civil Procedure Code.
2.The trial Court while passing orders in I.A.8812/08 has inter alia observed that 'the original minutes book was placed before me, It appears that the Company passed a resolution on 13.01.2006 itself not to allot shares. Primafacie case made out. Ad interim injunction is granted till 17.06.2008. Notice to the respondents, etc.,'
3.The learned counsel for the revision petitioner/R2 and R3/D2 and D3 contends that the trial Court has no jurisdiction to decide on the issue inasmuch as the same issue is pending before the Company Law Board Bench, Southern Region, Chennai in C.P.94/07 and further ought not to have passed the interim order of injunction in respect of allotment of shares since the first respondent/petitioner/plaintiff has filed Form 2 for the allotment of 5,87,000 shares and the Form FCGPR with the Reserve Bank of India along with the Certificate issue by the Statutory auditor of the Company and the Company Secretary stating that it has allotted 5,87,000 shares to the first revision petitioner and that in the normal course of business the second revision petitioner has been approached by Ramesh, Mahendran and S.Sriharan who travelled to Kualalumpur several times to initiate him to invest in the fast growing hospitality market in South India and on the recommendation of the said S.Sriharan and after visiting Chennai the Board of Directors of the first Civil Revision petitioner has decided to invest in Hotel Business in India and it approached S.Sriharan a friend of the second respondent/first defendant and when the second revision petitioner met the second respondent, he has been an employee of Tourism and Development Corporation of Tamilnadu and that the second revision petitioner has agreed to use the first revision petitioner's name Shanitha and suggested that the Company be incorporated under the name and style of Shanita Hotels Trichy Pvt. Limited and as per the advise of the second respondent/first defendant his wife Arulmozhi and son Raja have incorporated the Company and they are the subscribers of the Memorandum and Articles of Association of the first respondent/petitioner/Plaintiff's Company each subscribing 500 shares of Rs.100/- each and that the first revision petitioner has projected an application to the Bank Negara, Malaysia on 30.09.2004 to invest a sum of Rs.75,858,298/- which is 100% in the share capital of the Company and the first revision petitioner in the year 2004-2005 has brought in a sum of Rs.3.82 crores and an amount of Rs.2.05 crores during the year 2005-2006 and that for the two remittances, the ICICI Bank Limited has issued the Certificate of Foreign Inward Remittance for a sum of Rs.38,202,247.19 and a sum of Rs.21,541,700.11 and later, the Company has filed a declaration in Form FCGPR to Foreign Exchange Department, Reserve Bank of India, Chennai stating that 5,87,000 equity shares of Rs.100/- each has been allotted to the first civil revision petitioner and that the Certificate from the Statutory Auditor of the Company, N.C.Rajagopal & Co. dated 31.01.2006 certifying that 5,87,000 equity shares has been allotted by the Company to the first civil revision petitioner and also a Certificate has been obtained from Practicing Company Secretary V.Suresh dated 31.01.2006 certifying that the first civil revision petitioner has been allotted 5,87,000 equity shares of Rs.100/- each and that all the requirements of the provisions of the Companies Act has been complied with and that the Company is eligible to issue shares under these regulations, etc., and that the respondents 1 and 2 in collusion with his wife Arulmozhi and son A.Raja, S.Sriharan is in creating and falsifying the document to suit their requirement and cheat the revision petitioners of their own investment in the company and that the Company has manipulated the Registers of Members of the Company as if the revision petitioners' name have not been entered in the Register of Members and therefore, it is not entitled to maintain the company petition before the company Law Board and moreover, the contention of the Company that amounts have been remitted by the first civil revision petitioner is only towards loan and not towards share capital is contrary to the documents and records of the Company and added further, the trial Court has not acted as per Or.XXXIX R.3 A of the Civil Procedure Code by not hearing the matter within 30 days from the date of passing of the order and that the order has been passed on 06.06.2008 and in short, the trial Court has failed to comply with the requirement of the mandate prescribed under the Civil Procedure Code.
4.The further stand of the revision petitioners is that the trial Court has not taken up the I.A.8812/08 for hearing inspite of the request made by the learned counsel for the revision petitioners and as a matter of fact, the trial Court has adjourned I.A.8812/08 on ten occasions without adducing reasons and further, the fraud has been played on the Court by the respondents when they have not disclosed either in the plaint or in the affidavit in O.S.3737/08 that the identical issue is pending before the Company Law Board in C.P.94/07 and therefore, prays for allowing the civil revision petition in furtherance of substantial cause of justice.
5. Continuing further, on the side of the revision petitioners, it is stated that the first revision petitioner holds 99.82% of the paid up capital of the company and the balance 1,000 shares is in the name of S.Sriharan and the second respondent each 500 shares and that in the Balance Sheet of the Company for the year ending 31.03.2005, it is mentioned that an amount of Rs.3.82 crores has been disclosed as Share Application money pending allotment and in the Balance Sheet for the year ending 31.03.2006 certified by M.C.Rajagopal and Co., it has been disclosed that the paid up capital of the Company is Rs.58,80,000/- consisting of 5,88,000 equity shares of Rs.100 each and moreover in the said Balance Sheet in schedule No.9 notes and accounts the share holding pattern of the Company has been set out to the effect that equity shares have been allotted for Rs.5.87 crores consisting of 5,87,000/- equity shares out of the share application money received from the first revision petitioner during the financial year 2004-2005 Rs.3.82 crores and Rs.2.05 crores for the current financial year 2005-2006, which has been proved by the Reserve Bank of India.
6.The substance of the revision petitioners' case is that to deprive the revision petitioners investment in the share capital of the Company, the second respondent and his family members along with S.Sriharan have fabricated records as if no allotment is made to the first civil revision petitioner.
7. According to the learned counsel for the revision petitioners, the second civil revision petitioner has been appointed as the Chairman of the Company and that the Company has filed Form 32 with the Registrar of Companies, Chennai stating that the second revision petitioner has been appointed as the Chairman with effect from 22.12.2004 and further that out of funds remitted by the first revision petitioner, the Company has purchased a land measuring an extent of 2.16 acres in Kallapatti Village, Coimbatore for a sum of Rs.3,25,00,000/-.
8. Advancing the arguments, the learned counsel for the revision petitioners submits that the first and second respondents along with one S.Sriharan have played a fraud on the trial Court without disclosing the pending proceedings before the Company Law Board and therefore, the order of the trial Court in granting the ad interim injunction in I.A.8812/08 in O.S.3737/07 is liable to be set aside by this Court in the interest of justice. In support of his contention, he relies on the decision THE STATE OF ANDHRA PRADESH & ANOTHER V. T.SURYACHANDRA RAO, (2006) 1 LW 547 at pg.551 wherein the Honourable Supreme Court has observed as follows:
"10. "Fraud" as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false, and injury enures therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata (See Ram Chandra Singh v. Savitri Devi and others (2003 (8) SCC 319 = 2004-2-L.W.70)."
9. The learned counsel for the revision petitioners contends that the order of the trial Court dated 11.06.2008 passed in I.A.8812/08 is a non speaking one and that the requirements of law have not been satisfied by the trial Court while issuing the order of ad interim injunction and therefore, this Court can exercise its revisional powers under Article 227 of the Constitution of India to set aside the same to promote substantial cause of justice and in this regard, he cites the decision of this Court RT REV DR.V.DEVASAHYAM, BISHOP IN MADRAS AND ANOTHER V. D.SAHAYADOSS AND 2 OTHERS, 2002 (1) CTC 458, whereby and whereunder it is inter alia observed that 'when trial Court granted ex parte order of injunction without complying with mandatory provision to record reasons for granting such injunction High Court can exercise revisional powers under Article 227 of Constitution and set aside such orders.' He also presses into service the decision of the Honourable Supreme Court A.V.PAPAYYA SASRTY AND OTHERS V. GOVT. OF A.P. AND OTHERS, (2007) 4 SUPREME COURT CASES 221, wherein it is observed that 'Fraud vitiates all judicial acts whether in rem or inpersonam and that the Judgment, decree or order obtained by fraud has to be treated as non est and nullity, whether by Court of first instance or by the final Court and that it can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings.'
10. Yet another decision V.M.RAO & OTHERS V. RAJESWARI RAMAKRISHNAN AND OTHERS, (1976) 1 M.L.J pg.393 is relied on the side of the revision petitioners wherein this Court has held that 'the solemnity attached to the articles (of a company) and the binding nature thereof cannot be lightly whittled down by another contract which is in the nature of a family settlement which may be the equation of a domestic adjustment of differences or rights. Independent and separate rights in each of the shareholders are not built in the infra-structure of a corporate company and that the material before the Court, in the instant case was not sufficient to indicate that there was an enforceable family arrangement. The plaintiffs were not entitled to the ad interim injunctions as prayed for.' Added further, he seeks in aid of the Honourable Supreme Court decision S.P.CHENGALVARAYA NAIDU V. JAGANNATH AND OTHERS, AIR (81) 1994 SUPREME COURT 853, wherein it is held as follows:-
'The courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. It can be said without hesitation that a person whose case is based on falsehood has no right to approach the Court. He can be summarily thrown out at any stage of the litigation. A litigant, who approaches the Court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party.'
11. The learned counsel for the revision petitioners has drawn the attention of this Court to the decision UNION OF INDIA, ATTORNIC ENERGY DIVISION, HYD V. R.KARTHIKAI RAJAN AND 16 OTHERS (1999) 3 L.W. 471 at pg.472, wherein it is inter alia observed that '.....the Court below ought to have seen the necessary pleadings before granting such orders. The Court below has failed to see whether the requirements of Section 39 of the Specific Relief Act have been complied with by the respondents and has also failed to visualise the consequence of the orders. Therefore, there is a clear violation of principles of natural justice, where the interference of this Court under Article 227 of the Constitution of India is necessary. The Supreme Court has also held that it is not necessary to adopt the technical course of directing the trial Court to make the consequential order of rejecting the plaint. The practical course of making that order in the proceedings itself to avoid any needless delay in conclusion of futile litigation should be adopted. In this case, the course adopted by the Court is clear non-application of mind to the facts and as stated above, there is no cause of action and no right, title or interest accrued to the respondents for getting the relief. That apart, they have suppressed material facts before the Court of law. In that view of the matter, I am of the opinion that the plaint itself suffers from fatal defect, and it has to be struck off to avoid any needless delay in conclusion of the futile litigation between the parties and that in the instant case, the relief claimed by the respondents before the Court below are identical and the case of action is also one and the same. Therefore, there is clear abuse of process of Court in the present case by the respondents. Therefore for all the foregoing reasons, the interim ex parte order granted by the Court below is set aside, etc.,' He also relies on the decision of the Honourable Supreme Court RAM CHANDRA SINGH V. SAVITRI DEVI AND OTHERS, (2003) 8 SCC 319 at pg. 322 wherein it is inter alia held that 'An act of fraud on Court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata.'
12. Also, the learned counsel for the revision petitioners relies on the decision of this Court J.UMA MAHESWARI V. S.PETER, 2006 (5) CTC 568 wherein it is held that 'the absence of direction to comply with mandatory requirements under Order 39 Rule 3-A of the Civil Procedure Code, the injunction was liable to be suspended/set aside. Further that the parties should be given opportunities to agitate their rights before the concerned Court and direction has been issued to the trial Court to dispose of the application according to law.'
13. The gist of the argument of the learned counsel for the revision petitioners is that in cases of gross injustice and patent violation of elementary principles of law, this Court has to necessarily interfere with the order of the trial court passed in I.A.8812/08.
14.The learned counsel for the revision petitioners contends that the Company Secretary of the Company has issued Certificates before the Company Law Board and the Statutory Auditor of the Company on 31.01.2006 candidly show that 5,87,000 shares of Rs.100/- each has been allotted by the Company and further that the Balance Sheet of the Company as on 31.03.2006 also refers to the paid up capital inclusive of the aforesaid amount and therefore, these clear admissions are the best proof of facts and fully binding on the party that makes them and constitute a waiver of proof and in support of his contention, he relies on the decision of the Honourable Supreme Court NAGINDAS RAMDAS V. DALPATRAM ICCHARAM ALIAS BRIJRAM AND OTHERS, AIR 1974 SUPREME COURT 471 wherein it is observed as follows:
'such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement itself. Admissions, if true and clear, are by far the best proof of the facts admitted and they by themselves can be made the foundation of the parties.'
15. The learned counsel for the revision petitioners/D2 and D3 expatiating his arguments submits that the first revision petitioner has filed a company Petition No.94/07 before the Company Law Board, Chennai against the Directors of the Company including the second respondent and that the first petitioner/Company has been incorporated in Malaysia and that the second revision petitioner is the Managing Director of the first petitioner's company and that the first respondent/Company has filed a counter on 16.04.2008 and that the present suit O.S.3737/08 has been filed during May 2008 before the City Civil Court, Chennai and that the second respondent/first defendant is the Director of the first respondent/plaintiff and his wife and son are shareholders of the first respondent Company and the first revision petitioner being a Foreign Company (a Body Corporate) has applied to Reserve Bank of India and as a matter of fact, the first revision petitioner has applied to the Bank of Negara, Malaysia to invest in share capital of the first respondent Company and thereafter, the first revision petitioner/Company has sent by way of inward remittance on two occasions totalling a sum of Rs.5,87,00,000/- and after receipt of money, the first respondent/Plaintiff's Company has filed a return in Form II and that the Company has obtained a Certificate from the statutory Auditor on 30.01.2006 disclosing that the first respondent Company has allotted 5,87,000 shares to the first petitioner and further that the Company Secretary has also issued a Certificate on 30.01.2006 and moreover, within a month from the date of receipt of inward remittance by the first respondent Company, it has to allot shares to the petitioner and therefore in accordance with Foreign Exchange Management Act, the first respondent Company has filed its return in FGR Form on 30.01.2006, etc., and out of the funds remitted by the first revision petitioner, the first respondent Company has purchased a land measuring 2.16 acres in Coimbatore for a sum of Rs.3,25,00,000 and that the revision petitioners being a non resident of India have not been posted with information and when they asked for details from the second respondent/first defendant etc., and that after purchase of the property at Coimbatore all is not well with the first respondent company and that some foul play has been suspected and that the first revision petitioner has filed a suit before this Court in C.S.No.661/07 for the relief of permanent injunction restraining the first respondent Company from disposing of the property and that the said suit has been dismissed and in that suit, on 16.08.2007, the second respondent (in civil revision petition) has filed an affidavit in Application No.611/07 admitting that 5,87,000 shares have been allotted to the first revision petitioner and contrary to the Balance Sheet and the Certificate issued, the first respondent/Company take a plea that the inward remittance amount made by the first revision petitioner is only a loan transaction and if it is a loan transaction the entire procedure is different and that the funds sent by the first revision petitioner is to be utilised in proper manner and the funds cannot be utilised without obtaining permission from the Reserve Bank of India and that the second revision petitioner has been appointed as the Director of the Company and if it is a loan transaction there is no need to be on the Board, as the Chairman of the Board and in Form No.32 of the first respondent Company, the name of the second revision petitioner is shown as appointed as Chairman from 22.12.2004 and one Sriharan has been mentioned as appointed as Managing Director from 22.12.2004 and that the second respondent's wife Mrs.Arulmozhi Alaguraja has been mentioned as 'appointed as the first Director from the date of incorporation of the first respondent Company' and this return has been filed by the Company and that in the minutes of the meeting of the Board of Directors of the first respondent/Company dated 13.01.2006, A.Raja has been elected unanimously as the chairman of the meeting and this is a fabricated one and therefore, prays for allowing the revision filed by the petitioners herein.
16. Apart from the above, the learned counsel for the revision petitioners contends that the second revision petitioner has signed a sale agreement for purchasing the Coimbatore property and that the sale agreement dated 10.03.2005 contains the name of the second revision petitioner in Rs.20/- stamp paper and from 2004 till 2007, the respondents have not permitted the revision petitioners to know about the exact details and all their efforts ended in vain and that the father, son and the wife reside in the same premises and that the first respondent/Company has filed a civil suit before the said City Civil Court and the real aggrieved persons, namely, the mother and son have not initiated action and that the first respondent Company has initiated action as if the returns have been filed by the father and therefore are not valid or binding and after filing of the Company Petition C.P.97/04 by the revision petitioners, the first respondent/Company has fabricated another record and appointed another Auditor, one M.V.Sampath as Statutory Auditor of the company, who has certified the accounts for the year ending 31.03.2005, 31.03.2006, 31.03.2007 and the same have been filed before the Registrar of Companies and in regard to the Annual General Meeting of the first respondent Company on 07.07.2005 at 10 a.m., the Return is filed and in regard to the notice of the Annual General Meeting of the first respondent Company on 29.09.2006 at 10 a.m., the Return is filed subsequently and in regard to the Annual General Meeting of the first respondent Company on 28.09.2007, the Return is filed and these will show that all is not well with the first respondent Company and that the Balance Sheet do not also disclose the paid up share capital of 56,88,000 equity shares of Rs.100 each and it depicts only one lakh as paid up share capital and that the Balance Sheet as on 31.03.2005 of the first respondent Company has been signed by the mother and the son and that the Balance Sheet as on 31.03.2006 has also been signed in that way and in the Balance Sheet as on 31.03.2007 of the respondent Company Alagurajan has signed and that he has been appointed as the Director on 10.03.2005 and his wife and son has ceased to be the Directors and if they resigned on 10.03.2005, how they have signed the Balance Sheet for the year 2005-2007 and in the minutes of meeting of the Board of Directors of the first respondent Company dated 13.01.2006, the name of A.Raja, Srimathi.A.Arulmozhi and S.Alagurajan are found and this minutes has been substituted to show that they are the Directors and in the said minutes, it is inter alia mentioned that ' Sri A.Raja informing the Board that no shares shall be allotted to Foreign Company as funds received by the Company from Shanita Holding SDN BHD Malaysia was not for allotment of shares, but the amount received was only towards including loan' and there is no records to show that the amount has been received only towards unsecured loan and that on 10.05.2008, the wife and the son convened Extraordinary General Meeting to remove the father from the Directorship for his action of filing the return with the Registrar of Companies and Reserve Bank of India and there is a conspiracy by the father and son and by that they created the proceedings of the Board and the Agenda for the Board Meeting dated 27.03.2007 refers to the resignation of S.Sriharan from the post of Managing Director, the appointment of new Managing Director and another issue and the same has been addressed to S.Sriharan, S.Alagurajan, Sekar Rajasekaran and Mrs.A.Arulmozhi and that the Bank of Negara and Statutory Auditor of the first revision petitioner Company Mr.Jeya Balasingam wanted details regarding the investment in India made by the first revision petitioner's Company and that the said Auditor and the second revision petitioner has come to India and asked for the Balance Sheet of the first respondent/Plaintiff's Company and the first respondent has given the Balance Sheet and now the first respondent/Company takes a plea that these documents have been fabricated and that the Balance Sheets of Shanita Hotel for the year 2005-2006, unaudited trial balance upto 31.03.2007 in respect of Shanita Hotel have been handed over on 13.06.2007 to the first revision petitioner's Auditor Jeya Balasingam and the Balance Sheet for 2005-2006 and the unaudited trial Balance Sheet upto 31.03.2007 in respect of Malabar Hotel have been handed over on 13.06.2007 to the first revision petitioner's Auditor mentioned aforesaid and after handing over all these documents, it is not open to the first respondent Company to turn round and say these documents have been fabricated and that the first respondent/Plaintiff's Company has filed a suit before the City Civil Court in O.S.3737/08 without disclosing the pending proceedings before the Company Law Board and has obtained an order of interim injunction and that the first respondent/Plaintiff's Company has no prima facie case balance of Convenience and the trial court has not taken into account of an irreparable loss and that the order of the trial Court is bereft of reason and therefore prays for allowing the civil revision petition in the interest of justice.
17. Per contra, the learned counsel for the first respondent submits that the petitioners claimed that they have been allotted shares and if the claim is accepted they will become shareholders of the first respondent/Plaintiff's Company and as per Memorandum and Articles Association of the first respondent Company shares can be allotted by the Board of Directors of the Company and that the first respondent/Plaintiff's Company has filed a suit O.S.3737/08 on the file of XV Assistant City Civil Court, Chennai praying for declaration that the Return of allotment in Form II dated 30.01.2006 and FC-GPR dated 30.01.2006 by the second respondent/first defendant is illegal, null and void and that the counter and return statement have been filed and that the case has been adjourned from time to time and that the revision petitioners/D2 and D3 have filed I.A.13658/08 in O.S.373/08 before the trial Court under Section 10 of the Civil Procedure Code and that a Company Petition 94/07 has been filed by the first revision petitioner through the second revision petitioner before the Company Law Board, Additional Principal Bench, Chennai under Sections 397, 398 of the Companies Act and in C.P.94/07, C.A.120/08 has been filed by the first revision petitioner praying for an order of injunction without prejudice to the rights of the civil revision petitioners, restraining the first respondent Company from proceeding with the suit O.S.3737/08 pending on the file of XV Assistant City Civil Court, Chennai and that the present Civil Revision Petition has been filed by the revision petitioners on the ground of fraud and it is not possible for this Court to interfere under Article 227 of the Constitution of India and more over, the fraud must be established and can be established only by means of evidence and that the revision petitioners cannot use the term 'fraud as Mantra' and issues involved in the matter are of arguable points and that the criminal case has been filed by the petitioner and that the trial Court has passed a reasoned order and that the petitioners if they are aggrieved against the order of the trial Court passed in I.A.8812/08 then they have got a remedy of appeal in law before the appropriate forum and therefore prays for dismissal of the revision petition.
18. The further pleas of the learned counsel for the first respondent are to the effect that Article 227 of the Constitution of India cannot be converted into a Court of Appeal and that Section 10 of the Civil Procedure Code will not apply because of the fact that the forum has changed and Form II has been filed as if the petitioners are the shareholders and the revision petitioners cannot take advantage of the loan transaction and only the loan transaction is admitted and their claim as shareholders have not been admitted and if the order of injunction granted by the trial Court is suspended then the suit becomes infructuous.
19. According to the learned counsel for the first respondent/Plaintiff the suit O.S.No.3737/08 filed by the plaintiff before the City Civil Court is maintainable in law and that the jurisdiction of the Civil Court has not been ousted.
20. The learned counsel for the first respondent/Plaintiff relies on the decision of the Honourable Court DWARKA PRASAD AGARWAL AND ANOTHER V. RAMESH CHANDRA AGARWAL, (2003) 117 COMPANY CASES 200 (SC), wherein it is held as follows:
'By Sections 9 and 10 of the Companies Act, 1956, the jurisdiction of the civil court has not been ousted Section 9 of the Code of Civil Procedure, 1908 confers jurisdiction upon the civil courts to determine all disputes of civil nature unless it is barred under a statute either expressly or by necessary implication. Bar of jurisdiction of a civil court is not to be readily inferred. A provision seeking to bar the jurisdiction of the civil court requires strict interpretation. The court, it is well-settled, would normally lean in favour of the construction, which would uphold retention of jurisdiction of the civil court. The burden of proof in this behalf shall be on the party who asserts that the civil court's jurisdiction is ousted. Even otherwise, the civil court's jurisdiction is not completely ousted under the Companies Act, 1956.' He also cites the decision DR.T.M.PAUL V. CITY HOSPITAL P. LTD. AND ANOTHER, (1999) 97 COMPANY CASES 216 (KER) (DB), whereby it is held that 'Under Section 9 of the Code of Civil Procedure, 1908, civil courts have jurisdiction to try all suits of a civil nature except those of which cognizance by the civil court is either expressly or impliedly excluded. Such exclusion is not to be readily inferred, the rule of construction being that every presumption should be made in favour of the existence rather than the exclusion of jurisdiction of the civil courts. When there is no express provision excluding the jurisdiction of the civil courts, such exclusion can be implied only in cases where the right itself is created and the machinery for the enforcement of that right is also provided by the statute. If the right is traceable to general law of contract or it is a common law right, it can be enforced through the civil court even though the forum under the statute also will have jurisdiction to enforce that right. Section 10 of the Companies Act, 1956, only proceeds to enumerate or specify the court having jurisdiction under the Act wherever such jurisdiction is conferred on the court by the other provisions of the Act. Section 10 by itself does not confer jurisdiction on the High Court or the District Courts on all matters relating to companies.' Further, he brings to the notice of this Court the decision KAUSHIKLAL NANALAL PARIKH V. MAFATLAL INDUSTRIES LTD, (1995) 84 COMPANY CASES 752 (GUJ) at pg.753, whereunder it is held that 'Whether the resolutions were invalid being in contravention of a law or whether they were prejudicial to the interest of the company within the meaning of sections 397 and 398 of the Companies Act, 1956, would require the recording of evidence; without the recording of evidence, this question could not have been decided.' He also invites the attention of this Court to the decision SPICES VALLY ESTATES LTD V. TC FOREXPRESS LTD (2007) COMPANY CASES 364 (Mad), at pg. 365 wherein this Court has inter alia held that '.....to file a petition before the Company Law Board, under section 10 of the Companies Act, 1956, the respondent-company should be a member holding not less than one-tenth of the issued share capital. However, even the shareholding of the respondent company had been disputed by the petitioner-company. Hence, the issues involved required the adjudication of the civil court and therefore, the dismissal of the application by the trial court did not warrant any interference.'
21. On the side of the first respondent/Plaintiff, the decision of the Honourable Supreme Court SHAMSHAD AHMAD V. TILAK RAJ BAJAJ, (2008) 9 SUPREME COURT CASES 1 at pg.4 is relied on to the effect that 'though powers of a High Court under Arts.226 and 227 are very wide and extensive over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction, such powers must be exercised within the limits of law and that the power is supervisory in nature and that the High Court does not act as a court of appeal or court of error and it can neither review nor reappreciate, nor reweigh the evidence upon which determination of a subordinate court or inferior tribunal purports to be based or to correct errors of fact or even of law and to substitute its own decision for that of the inferior court or tribunal and that the powers are required to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts and inferior tribunals within the limits of law.'
22. The learned counsel for the first respondent cites the decision of the Honourable Supreme court A.VENKATASUBBIAH NAIDU V. S.CHELLAPPAN, (2000) 7 SUPREME COURT CASES 695 wherein it is held that 'Principle is well recognised that High Court ought to direct party to seek other available remedies before invoking constitutional remedy.' Moreover, he seeks in aid of the decision of the Honourable Supreme Court JASBIR SINGH V. STATE OF PUNJAB, (2006) 8 SUPREME COURT CASES 294, whereby the Honourable Supreme Court has inter alia held that 'the High Court's power of superintendence and control over all subordinate courts and tribunals is both of administrative and judicial nature, etc.,' Continuing further, he presses into service the decision of the Honourable Supreme Court MOHD.YUNUS V. MOHD.MUSTAQUIM AND OTHERS, AIR 1984 SUPREME COURT 38, wherein it is held that 'Supervisory jurisdiction of High Court under Art.227 of the Constitution cannot correct the errors of law.'
23. The learned counsel for the first respondent lays emphasis on the decision of this Court GANESA NAICKER V. KIKILAMABAL, (2006) 1 LW 677 (Mad), wherein it is held that 'Power under Article 227 must be exercised with restraint and only for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority.' Further, in the decision GANAPATHY SUBRAMANIAN V. S.RAMALINGAM (2007) 7 MLJ 13 (Mad), wherein this Court has held that 'only wrong decisions may not be a ground for the exercise of jurisdiction under Article 227 of the Constitution, unless the wrong is referable to grave dereliction of duty and flagrant abuse of power by the subordinate Courts and Tribunals resulting in grave injustice to a party.'
24. On the side of the first respondent, reliance is placed on the decision GANDHI V. SAKTHIVEL, (2008) 4 TNLJ 360 (Mad), this Court has held that 'under Or.39 R.3 A of the Civil Procedure Code an interim injunction application has to be disposed of within 30 days and adjourning the case for the respondents' side argument to different dates is incorrect and not proper.'
25. Countering the submissions of the first respondent side, the learned counsel for the revision petitioners submits that by means of an interim injunction order passed in I.A.8812 of 2008 by the trial Court, the revision petitioners are not able to proceed with C.P.94/07 filed before the Company Law Board and under Section 399 of the Companies Act, the shareholders have right to approach the Company Law Board and that the Company has no right in this regard and that the duty of the first respondent Company is to take action and not to remain as a watch dog and in regard to the filing of the form F.I.R. is pending and when one is not a Director he cannot claim dividend and inasmuch as the order of the trial Court passed in I.A.No.8812 of 2008 dated 11.06.2008 is a non speaking one the revision has to be allowed by this Court to prevent aberration of justice.
26. It is not out of place for this Court to point out that in the decision SANGRAMSINH P.GAEKWAD AND OTHERS V. SHANTADEVI P.GAEKWAD (DEAD) THROUGH L.RS. AND OTHERS, (2005) 11 SUPREME COURT CASES 314 at pg.320, the Honourable Supreme Court has held that 'dispute as to inheritance of shares is eminently a civil dispute and cannot be said to be a dispute as regards of oppression and/or mismanagement so as to attract company Court's jurisdiction under Section 397 and/or Section 398 and that adjudication of a power question of title as to shares is not contemplated under Section 397 of the Companies Act, especially if a civil suit is pending inspite of the same, as in the present case.' In the decision ETERNIT EVEREST LTD., V. NEELMANI BHARATIYA, AIR 1999 RAJASTHAN 235, it is held that 'Relief claimed by the plaintiff to declare him owner of share and to cancel transfer of shares obtained by misrepresentation or fraud in favour of transferees, the jurisdiction to take cognizance lies exclusively with the Company Law Board and not Civil Court.'
27. In the decision SHRI PREM SETH V. NATIONAL INDUSTRIAL CORPORATION LTD., AIR 1994 DELHI 285, it is held that 'the Directors of the Company act in fiduciary capacity and if they in their discretion decide to issue shares for the purposes of raising the funds, the only question for decision is whether the issuance of the shares for the purpose of raising funds is in the interest of the Company.'
28. It is to be borne in mind that the term 'Fraud' is not employed in technical sense under Company Law. It specifies in such conduct of affairs as constituting a discrimination of the shareholders much less the minority shareholders for the purposes by this extent, in discriminatory conduct is a fraudulent conduct. As a matter of fact, when no specific remedy is provided under the Companies Act, the proper remedy is a suit which is to be filed in an appropriate Court, which may be a Court Subordinate to High Court. Indeed, unless a particular matter is specified in the act to be dealt with by Company Court it cannot exercise its jurisdiction merely because it is also a matter which relates to the Company.
29. It is an axiomatic fact that the exclusion of jurisdiction of the Civil Court is not to be readily inferred and such exclusion must either be explicitly expressed or clearly implied, as per principles of Statutory Interpretation.
30. Generally speaking, presumption is in favour of existence of the jurisdiction rather than exclusion of jurisdiction of Civil Courts. Normally, the Civil Court's jurisdiction has three dimensions a) It must have jurisdiction regarding the Subject Matter. b) Civil Court should have pecuniary jurisdiction c) Civil Court must have territorial jurisdiction to entertain the suit.
31. In regard to the function of a Balance Sheet, it may be stated to be an endeavour to show the Share Capital, Reserves (distinguishing those which are available for distribution as Dividends from those not regarded as so available) and the Liabilities of the Company at the date on which it is prepared and the manner in which the total sums representing then are distributed over the several types of Assets. In short, a Balance Sheet is an Historical document. Suffice it to point out that a Balance Sheet must not be a mere Inventory in the considered opinion of this Court. Also, a Balance Sheet is known as a statement of Assets and Liabilities Net worth and it is called as 'Statement Of Financial Position'. In the Companies Act, it is the duty of the Directors of a Company to see that the regular and correct Account Books are kept.
32.Normally, it is the duty of the Directors and the Management to ensure that the provisions of the Companies Act have been complied with. However, where there is contravention of legal requirement by a Company which has a bearing on the accounts and transactions of the Company, an Auditor would in the normal course of his inquiry become aware of them and it would need to be brought to the notice of the shareholders. In short, an Auditor should, however, not merely state the facts, leaving it to be inferred that a contravention of legal requirements has taken place, but he should spell out that in his opinion a contravention of the law has taken place. Further, an Auditor is the eyes and ears of the disparate shareholder community. Moreover, the only individual who has an access to the books and accounts of a Company, apart from the concerned Company itself, is the Auditor.
33. It is significant to make a mention that the Additional Principal Bench of Company Law Board, Chennai has been established on 14th December 2000 consisting of not less than two members. The Chairman of the Company Law Board may specify that matters falling under Sections 235 and 237 and under Chapter VI of Part VI (Sections 397 to 409), in so far as they relate to Southern region be dealt with the Additional Principal Bench, which will have jurisdiction over the States of Tamilnadu, Karnataka, Kerala, Andhra Pradesh and Union Territories of Pondicherry and Lakshadweep islands (as per GSR 917 (E) dated. 14.12.2000 issued by the Company Law Board). Added further, the Company Law Board may pass such orders as may be necessary for the ends of justice or to prevent abuse of process of the Bench as per Regulation 44 and this power is similar to the power of a Civil Court under Section 151 of the Civil Procedure Code.
34. As far as our country is concerned, a Share is not merely a chose-in-action; it is also as per the definition of Share or Debentures under Section 82 of the Companies Act is a 'movable property'. However, Shares or Debentures become equivalent to 'Goods' as per the decision KUNHUNNI ELAYA NAYAR V. P.N.KRISHNA PATTAR, (1942) 12 COM. CASES 180 (MAD) but shares are not equivalent to 'Goods' before the allotment. As a matter of fact, an applicant for allotment of shares is a prospective investor, though he is not an immediate 'Buyer Of Goods'. No wonder, the shares are simply bundle of intangible rights against the Company which has issued them. After all, share Certificates are just evidence of true property, which are the proportionate interests of the shareholders in the ownership of the Company. As such, each Share Certificate with the depository evidences the same bundle of rights, and each bundle of rights can satisfy the client's proprietary interest as any other. To put it differently, a 'share' is a right to a particular amount of the share capital of a Company, carrying with it certain rights and liabilities, while the Company is a going concern and in winding up. Moreover, it represents the interest of the Holder measured for the purposes of liability and dividend by a sum of money.
35. Be that as it may, this Court points out the decision R.R.RAJENDRA MENON (No.2) V. KOCHIN STOCK EXCHANGE LIMITED AND ANOTHER, (1990) 69 COMPANY CASES at pg. 256, wherein it is held that 'unless a particular matter is specified in the Companies Act as one to be dealt with by the Company Court, it cannot exercise jurisdiction merely because it is also a matter which relates to a Company and that there is no provision in the Companies Act, expressly or impliedly specifying that an application to compel a Company to comply with the requirements of Section 257 of the Companies Act would lie before the Company Court etc.,'.
36.Yet another decision R.K.JAIN V. BRANCH REGISTERED (IRON AND STEEL) STOCK HOLDERS ASSOCIATION LTD., (1978) 48 COMPANY CASES at pg. 401 (P & H), it is held that 'a petition under Section 166 read with Section 171 of the Companies Act, 1956, to seek the primary relief that the meeting of the respondent-Company be declared illegal and void is not maintainable and the only remedy available to the petitioner is to file a civil suit.'
37. In the decision PIYUSH KANTI GUHA V. WEST BENGAL PHARAMACUETICAL & PHYTOCHEMICAL DEVELOPMENT CORPORATION LIMITED AND OTHERS, AIR 1982 CALCUTTA 94 at pg.95, it is laid down as follows:-
'Where the main relief sought for in the Company petition was on the ground of oppression and framing a scheme and appointment of Directors which was distinctly different from the relief asked for in the civil suit restraining some directors nominated by the Government from functioning, it was held that the stay of the proceedings in the Company Petition could not be granted under Section 10. AIR 1978 SC, 375, (1980) 50 COM CAS 771 (CAL) and 1970 TAX LR 2292 (ALL) Referred.'
38. In the decision T.L.ARORA AND OTHERS V. GANGARAM AGARWAL, (1987) 1 COMP. LJ at pgs.241, 242 it is held as follows:-
'in order to attract the provision of Section 10 of the Civil Procedure Code, 1908, it must be established that the issue in the suit and the proceedings pending before the Company Law Board are substantially the same and that the Company Law Board has the jurisdiction to grant the claim and that the two proceedings are between the same parties or their representatives and as such parties are litigating in both matters under the same title. On the facts, it was held that all the conditions precedent necessary for invoking Section 10 of the Code of Civil Procedure were not present, the suit could not be stayed. The mere fact that the application was filed by this from plaintiffs would not be of much consequence unless the subject matter, both before the Court and before the Company Law Board is substantially same but rather altogether different, the proceedings before the Court could not be stayed under Section 10 of the Civil Procedure Code.'
39. In the decision in Shivkumar Chadha V. MCD (1993) 3 SCC 161 the Honourable Supreme Court has emphasised the need to assign reasons before passing exparte orders of injunctions and the same is as follows:
"... The Parliament has prescribed a particular procedure for passing of an order of injunction without notice to the other side, under exceptional circumstances. Such exparte orders have far reaching effect, as such a condition has been imposed that Court must record reasons before passing such order. If it is held that the compliance with the proviso aforesaid is optional and not obligatory, then, the introduction of the proviso by the parliament shall be a futile exercise and that part of R.3 will be a surplus usage for all practical purposes. Proviso to R.3 of Order 39 of the Code of Civil Procedure, attracts the plea, that if a constitute requires a thing to be done in a particular manner it should be done in that manner or not at all."
40. In Wajid Ali Mirza and another V. M.A.Qaher and others AIR 1989 NOC 113 (ANDH. PRA), whereby it is held as follows:-
'Civil P.C. (5 of 1908), O.43, R.1 (r), O.39, R.1 - Appeal against ex parte interim injunction - Ex parte order of injunction passed by court after due compliance of O.39, R.3 - Held, proper course was to direct aggrieved party to approach same court for vacating ex parte order, when its continuance would not result in abuse of process of Court.'
41. In the decision Bengal Club Limited V. V.Chowdhury AIR 2003 Calcutta at page 96, it is among other things held that 'a person aggrieved by an order of exparte injunction by way of filing an appeal can urge before the appellate Court that the plaintiff before trial Court has suppressed the facts.'
42. In Airport Authority of India V. M/s.Paradise Hotel and Restaurant AIR 2002 Gauhati at page 146, it is held that 'an exparte ad-interim temporary injunction is appealable and not amenable to revisional jurisdiction of High Court. Further more, in the aforesaid decision at para 12, it is observed as follows:
"12.While answering the above question, it needs to be borne is mind that notwithstanding the decision in Subhas Mohan Dev's case (supra), relied upon by Mr.K.N.Choudhury, Full Bench of this Court in (1984)1 GLR 133 : (AIR 1984 Gauhati 86) (Akmal Ali v. State of Assam) has laid down the law on the subject in the following words:-
"If an order of ad interim injunction is passed under Order 39, R.1 or 2 of the Code of Civil Procedure, whether ex parte or otherwise, it is appealable, as O. 43, R.1 (r) enables a party aggrieved by any order under O.39, R.1 or 2 to prefer on appeal ............................ In our opinion, therefore, the Court cannot refuse to entertain an appeal only on the ground that such orders are temporary or interim or provisional. Similarly, by their very nature ad interim injunctions passed under O.1 or 2 are always rendered ex parte, Parliament being fully aware of the situation permitted appeals against such orders. In our opinion, therefore, an ex parte order of temporary injunction, whether provisional, temporary or interim, are appealable, if rendered under O.39, Rr.1 and 2. On perusal of Order 43, R.1(r) we notice that it speaks that an appeal shall lie from an "order" under R.1, R.2-A, R.4 and R.10 of Order 39. Therefore, any order under Rr.1, 2, 2-A and 4 is appealable.......................................................................................... However, there is a line of decisions in which it has been held that an ex parte or ad interim order of injunction under O.39, Rr.1,2,2-A is not appealable as it is temporary or ex parte or non-speaking. But in the same breath the High Courts recognise the right of petition against such orders under O.39, R.4 of the Code. An ex-parte non-speaking temporary or ad-interim order of injunction is revisable but it is not appealable, although the characteristics of the impugned order are absolutely the same both in O. 39, R.4 as well as in O. 43, R.1(r), seems to be irreconciliable. If it is an order of injunction, it is appealable as well. Similarly, if it is an order of injunction it is revisable under O.39, R.4. Situated thus, we find it difficult to accept the line of reasoning and respectfully differ from the view. In our opinion, all ex parte ad interim injunction are appealable under O.43, R.1(r) as well as revisable under O.39, R.4 of the Code ................................................... Any controversy as to whether reasons need be recorded while making an ex parte order of an interim injunction has been removed by the introduction of R.3, which provides that the Court after recording reasons for its satisfaction that the object of granting injunction would be defeated by delay, etc. may pass an order of ex parte ad interim injuctions under Rr.1 and 2 of O.39. It does not stand to scrutiny that an ad interim order devoid of reasons, rendered in violation of the well known principles that a judicial order must contain reasons, and in violation of the mandatory provision of R.3 can escape the jurisdiction of the appellate Court, but the same order can be revisedb y the very same Court. Judicial order must be reasoned order. After the amendment, it must contain reason. The trial Court must apply its mind to the materials placed before it, and, on being satisfied about the requirements of O.39, Rr.1 and 2 make the order. Further, R.3 enjoins "reasons to be recorded." Under these circumstances when the trial Court is required by law state reasons, but does not furnish them in its order, it violates the provisions of 'the Code.' By its own inaction or intentional violation of the mandatory provisions of the Rules a Court cannot take away the right of appeal of a person aggrieved by that order. As such, an ex parte order of injunction, whether speaking or non-speaking, is appealable." (Emphasis is added)
43. It is true that a right of appeal is always a creature of statute and the right of appeal conferred O.43 R.1 of Civil Procedure Code is an appeal both on facts and law. No wonder, the requirement of assigning reasons for the grant of exparte ad interim injunction is a mandatory one.
44. In Dover Park Builders Private Limited V. Madhuri Jalan and others, AIR 2003 Calcutta at page 55 it is held that 'variation, discharge and vacating of interlocutory order can only be made by the Court, which has granted such order. Where the order of injunction was granted by the appeal Court on refusal to grant by trial Court, therefore, ordinarily going by wording of Order 39 Rule 4 of Civil Procedure Code the petitioner would have to approach the Division Bench of High Court for the appeal, but for the leave reserve in the order itself the defendants approach the trial Judge that is now being dealt with by the High Court under Article 226 and High Court under Article 226 if varies or modifies the order of injunction granted by the appeal Court it would not be deemed to be variation of order of appeal Court by it in an exercise of its jurisdiction of the trial Court and so it will not be committing judicial in discipline. It is futile to contend that the defendant cannot make such an application as the appeal Court do not grant such permission because permission or no permission when the law enjoined the right to the litigating parties to approach the Court straight away if it causes undue hardship.'
45. This Court at this juncture recalls the observations of the Honourable Supreme Court in the decision T.Arivandandam V. Satyapal and another AIR 1977 SC 2421 at page 2423 which runs as follows:
"... The learned Munsif must remember that if on a meaningful - not formal - reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under O.VII R.11 C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clear drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under O.X C.P.C. An activist Judge is the answer to irresponsible law suits. The trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage etc."
46. Where an exparte interlocutory order is unjust then, appeal is maintainable notwithstanding the remedy available to a party under Order 39 Rule 4 of Civil Procedure Code. In fact, the two remedies are available to a defendant against an order of exparte injunction (i)an application under Order 39 Rule 4 of Civil Procedure Code for varying or vacating the order; (ii) an appeal under Order 43 Rule 1(r); the two remedies are concurrent. In Celin V.Thomas Johnson AIR 2006 Ker.297, it is observed that 'the remedy available against an order vacating injunction is to file an appeal under Order 43 Rule 1(r) of Civil Procedure Code and not writ petition.' Further the trial Court's order ought to be a reasoned one. Atleast an outline of process reasoning should be there. Needless to say that an unreasoned order may be just, but may not appear to be so to the person affected. Per contra, a reasoned order will have the appearance of justice.
47. A perusal of the trial Court's order in I.A.8812/08 in O.S.3737/08 dated 11.06.2008 shows that the said order is devoid of qualitative and quantitative details as to the grant of ad interim injunction as per well settled principles of Law.
48. One cannot brush aside an important fact that the inclusion of cause of action is a requirement under Order 7 Rule 1 of the Civil Procedure Code. Normally, the Court has to presume that every allegation in the plaint is true. However, when the plaint raises arguable points the same may not be rejected in law. As a matter of fact, if the averments made in the plaint and the documents relied upon discloses a cause of action then the plaint should not be merely rejected on the ground that the averments are not sufficient to prove the facts stated therein. All the more, a Court of Law can examine the parties to clear the pleadings.
49. In the plaint, the first respondent/Plaintiff has averred in para 12 that the trial Court has power to entertain the present suit as the dispute is purely in civil nature and that by virtue of Section 9 and 10 of the Companies Act 1956, the jurisdiction of Civil Court has not been ousted, etc., In this connection, it is relevant for this Court to point out that Order 39 Rule 3A of Civil Procedure Code specifies that an interim injunction application is to be disposed off within 30 days and adjourning the case from time to time to different dates beyond 30 days by the trial Court is not proper in the considered opinion of this Court.
50. On a conspectus of respective contentions and in view of the fact that the respective parties have taken a rival stand, which are a mixed question of fact and law to be proved by means of oral and documentary evidence, besides raising arguable points this Court without going into the merits of the matter opines that the civil revision petitioners cannot invoke the jurisdiction of this Court under Article 227 of the Constitution of India when they have two concurrent remedies. a) As per Order 39 Rule 4 of Civil Procedure Code to vary or vacate or discharge the order passed by the trial Court in I.A.8812/08 in O.S.3737/08 dated 11.06.2008 and b) to file an appeal under Order 43 Rule 1(r) of Civil Procedure Code whether the said exparte order is a reasoned or non-reasoned one and moreover, the supervisory jurisdiction under Article 227 of the Constitution of India has to be sparingly resorted to by this Court and in this view of the matter, the civil revision petition is dismissed. Liberty is given to the revision petitioners to raise all factual and legal contentions before the trial Court including the plea of maintainability of the suit on the point of jurisdiction in accordance with law.
51. In the result, the civil revision petition is dismissed, leaving the parties to bear their own costs. It is open to the petitioners/R2 and R3/D2 and D3 to work out their remedies as per the Civil Procedure Code. Consequently, the connected miscellaneous petition is also dismissed.
vri To The XV Assistant City Civil Court, Chennai