Madras High Court
Sical Logistics Limited vs Kyko Global Inc on 28 March, 2014
Author: R.Subbiah
Bench: R.Subbiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.03.2014 CORAM :
THE HONOURABLE Mr.JUSTICE R.SUBBIAH Original Application Nos.593 & 594 of 2012 and Application No.4619 of 2013 and Original Application No.767 of 2013 and Application No.5089 of 2013 and Application Nos.6292 & 6293 of 2013 and Application No.4297 of 2013 in C.S.No.495 of 2012 As per O.A.593/2012 Sical Logistics Limited having its registered office at South India House, No.73, Armenian Street, Chennai-600 001.
rep. By its authorised signatory,
Mr.T.Subramaniam. ... Applicant/Plaintiff
Vs.
1.Kyko Global Inc
2 Finley Road,
Brampton, Ontario,
Canada E6T-1A9.
2.Kiran Kulkarni
CEO & Director of Kyko Global Inc
2 Finley Road,
Brampton, Ontario, Canada-E6T-1A9.
3.West Coast Maritime Pvt. Ltd.,
No.410, Bharat Chambers,
52, Baroda Street,
P.D.Road, Masjid (E), Mumbai-400 009.
4.A.K.Tirupathi,
Director of West Coast Maritime Pvt. Ltd.,
No.410, Bharat Chambers,
52, Baroda Street,
P.D.MELLON Road, Masjid (E),
Mumbai-400 009.
5.Casa Lakshmi Management Services Pvt. Ltd.
Samir, 6, Archana Housing Society,
Ganeshmala, Dattawadi,
Pune, Maharashtra, India.
6.Norsea Global Offshore pte. Ltd.,
No.31, Cantonment Road,
Singapore-089747.
7.Ashok Kumar Sahu (A.K.Sahu),
Having his Head Office at
Sought India House,
No.73, Armenian Street,
Chennai-600 001.
8.Rakesh Kumar Pandey (R.K.Pandey)
General Manager (Operations),
Employee No.2400,
No.1504, Mita Heights,
Plot No.51B, Sector-20,
Kharghar, Navi Mumbai-410 210.
9.Bergen Offshore Logistics Pte. Ltd.,
No.31, Cantonment Road,
Singapore-089747.
10.S.Rajappan,
2/146, NATCO Colony,
Thiruvanmiyur, Chennai-600 041.
11.A.B.Sundar,
12, Janaki Raman Street,
West Mambalam, Chennai-600 033.
12.Ramasamy Chokkalingam,
No.31, Cantonment Road,
Singapore-089747.
13.Sundhir Shnataram Rangnekar,
A 25 Jagruti Co-operative Housing Society,
101 Lady Jamshedji Road, Mahim,
Mumbai.
14.V.Radhakrishnan,
Company Secretary,
South India House,
No.73, Armenian Street,
Chennai-600 001.
15.Chinar Shipping and Trading Companhy Limited.,
No.410, Bharat Chambers,
52, Baroda Street,
P.D.Raod, Masjid (E),
Mumbai-400 009. ... Respondents/Defendants
Original Application No.593 of 2012 has been filed under Order XXXIX Rule 1 of CPC r/w Rule 1 of Original Side Rules r/w Clause 12 of Letter Patenet Act, praying to restrain the defendants 1, 2 & 5 and their representatives from using the fabricated documents mentioned in affidavit filed in support of the application, pending dispose of the suit.
For Petitioner/plaintiff : Mr.P.S.Raman, Senior Counsel For Mr.S.Arjun Suresh For Respondents/Defendants: Mr.Aravind P.Datar, Senior Counsel for Mr.B.N.Suchindran (For D1) Mr.V.Vijay Narayan, Senior Counsel for Mr.Anand Sasidharan (For D6 & D9) Mr.R.Sundaramurthy (For D7) Mr.V.M.Kotteswaran (For D8) Mr.V.V.Sivakumar (For D10 & D14) Mrs.Pushpa Menan (For D11 to 13) Original Application Nos.593 & 594 of 2012 and Application No.4619 of 2013 and Original Application No.767 of 2013 and Application No.5089 of 2013 and Application Nos.6292 & 6293 of 2013 and Application No.4297 of 2013 in C.S.No.495 of 2012 R.SUBBIAH, J.,
Original Application No.593 of 2012 has been filed by the applicant/plaintiff seeking for ad-interim injunction restraining the respondents 1, 2 & 5/defendants 1, 2 & 5, their representatives from using the fabricated documents mentioned in para 6 of this Original Application in any legal proceedings, pending disposal of the above suit.
2.Original Application No.594 of 2012 has been filed by the applicant/plaintiff seeking for ad-interim injunction restraining the defendants 1, 2 & 5 and their representatives from instituting or continuing any legal proceedings with fabricated documents mentioned in para 6 of this Original Application, pending disposal of the above suit.
3.Application No.4619 of 2013 has been filed by the applicant/plaintiff under Order XXXIX Rule 2A of C.P.C., to punish the respondents 1 & 2/Defendants 1 & 2 for willful disobedience of the orders of this Court dated 30.07.2012 and 19.11.2012 passed in Application No.594 of 2012.
4.Original Application No.767 of 2013 has been filed by the applicant/plaintiff seeking for an order of interim injunction restraining the respondents 1, 2 & 5/Defendants 1, 2 & 5 from in any manner proceeding to enforce or otherwise execute the decree of the Superior Court of Justice, Ontario, Canada dated 09.11.2012 in CV-12-2476-00, which had been obtained by the respondents in violation of the order of this Court granted on 30.07.2012 and extended on 19.11.2012 in A.No.594 of 2012 in C.S.No.495/2012, pending disposal of this suit. In this application, this Court has granted interim injunction on 04.10.2013.
5.Application No.5089 of 2013 has been filed by the applicant/1st respondent/1st defendant seeking to vacate the order of interim injunction granted by this Court on 04.10.2013 in O.A.No.767 of 2013 in C.S.No.495 of 2012.
6.The above applications are disposed of by way of this common order. For the sake of convenience, the parties are referred to as per their rankings in the suit.
7.The plaintiff viz., Sical Logistics Limited has filed the present suit as against the defendants 1 to 15 for the following reliefs:-
i)for declaration declaring the Extracts of the Minutes of the Board of Directors Meeting dated July 15, 2010 of the Plaintiff Company and purported to have been singed by 10th, 11th and 14th defendants as null and void;
ii)for Permanent Injunction restraining the defendants 1 & 2 from using the Guarantee documents dated 2nd August 2010 purported to have been signed by 10th, 11th and 14th defendants in any legal proceedings;
iii)for permanent injunction restraining the 5th defendant from using the two undated cheques issued & signed by 7th defendant of the Plaintiff Company in any legal proceedings;
iv)for permanent injunction restraining the 1st and 2nd defendants from using the Bill of Exchange Promissory note purported to have been executed by the 6th defendant and the 9th defendant through 7th, 8th, 12th and 13th defendants dated 31st August 2010 in any legal proceedings;
v)for permanent injunction restraining the 1st and 2nd defendants from using the Negotiable Instrument dated 27.10.2010 purported to have been executed by the 6th defendant and the 9th defendant through 7th, 8th, 12th and 13th defendants in any legal proceedings;
vi)for permanent injunction restraining the 1st and 2nd defendants from using the Promissory Note dated 08.03.2010 executed by the 6th defendant and the 9th defendant through 7th, 8th, 12th and 13th defendants in any legal proceedings;
vii)for permanent injunction restraining the 1st and 2nd defendants from using all other documents in any legal proceedings which are in their custody as the documents executed by the plaintiff and their representative without the permission of this Court;
Viii)for costs of the suit.
8.The brief facts of the case of the plaintiff is as follows:- The plaintiff-company is engaged in the business of providing end-to-end Logistics service across the country and has subsidiaries in India and Singapore, which are also engaged in similar business of providing logistics services. The plaintiff-company has two subsidiaries in Singapore, which are defendants 6 & 9 herein. The 7th defendant was recruited at Chennai and he was sent to Mumbai as Assistant Manager (Finance and Accounts) in the year 2004 and he was later promoted as Manager (Finance and Accounts). The 8th defendant was appointed as General Manager-Operations (since resigned) at the plaintiff's Mumbai Office in the year 2007. On 04.10.2010, one Ms.Sonal Thomas of M/s.Thomas Law Professional Corporation, contacted the 14th defendant over phone at Chennai, who is the Company Secretary of the Plaintiff-company, and informed that she is the Counsel for the defendants 1 & 2 herein and that six documents are in her custody purported to have been executed at Chennai for a loan availed from the 1st defendant by the defendants 6 & 9 and she wanted to ensure the veracity and validity of those documents. It was replied by the plaintiff-company to the said Sonal Thomas that the defendants 6 & 9, being the subsidiary companies of the plaintiff, have never availed such loan and the plaintiff-company has never stood as guarantor for the same. She was requested by the plaintiff to forward the aforesaid documents to the plaintiff for verification. On the request of the plaintiff-company, Mrs.Sonal Thomas of M/s.Thomas Law Professional, forwarded by E-Mail the following documents to the plaintiff_
i)The Extracts of the purported Minutes of the Board of Directors dated July 15, 2010 of the plaintiff-company and purported to have been singed by the defendants 10, 11 & 14.
ii)Guarantee documents dated 2nd August 2010 purported to have been signed by the defendants 10, 11 & 14.
iii)The two undated cheques purported to have been issued for the loan and have been signed by the 7th defendant of the plaintiff-company.
iv)Bill of Exchange Promissory Note purported to have been executed by the 6th defendant and the 9th defendant through 7th, 8th, 12th and 13th defendants dated 31st August 2010.
v)Negotiable Instrument dated 27.10.2010 purported to have been executed by the defendants 6 & 9 through the defendants 7, 8, 12 & 13, dated 31st August 2010.
vi)Bill of Exchange Promissory Note dated 08.03.2010 purported to have been executed by the 10th defendant.
According to the plaintiffs, the above said documents have been forged by the defendants 1 to 5, 7, 8 & 15 and the signatures of the defendants 10 to 14 contained in the said documents are forged. The alleged documents relied upon by the defendants 1 & 2 for sustaining their claim are totally vitiated by fraud as those documents are forged and fabricated. The defendants 1 & 2 are threatening the plaintiff that they would initiate legal proceedings before the Canadian Court by using those fabricated documents against the plaintiff. If any legal proceeding is initiated based on those fabricated documents, it would cause hardship and inconvenience to the plaintiff and other defendants, apart from the defendants 1 & 2, as none of them are situated in Canada. Hence, it is just and proper to restrain the defendants from instituting and continuing any legal proceedings before the Canadian Court based on the above said fabricated documents. Hence, the plaintiff has filed the above suit for the reliefs as stated supra.
9.Pending the above suit, the plaintiff has filed the Applications Nos.593 & 594 of 2012 seeking to restrain the defendants 1, 2 & 5 from using the above said fabricated documents and also to restrain them from instituting or continuing any legal proceeding on the basis of the above said fabricated documents.
10.This Court by order dated 30.07.2012 in Application No.594 of 2012, while ordering notice to the defendants, has granted interim injunction for a period of two weeks.
11.While so, the plaintiff was informed by the Canadian Counsel for defendants 1 & 2/respondents 1 & 2 vide letter dated 11.03.2013 that an exparte decree and default Judgment dated 09.11.2012 was obtained as against the plaintiff and defendants 6 & 9 from Superior court of Justice at Ontario, on the alleged extracts of minutes dated 15.07.2010 and guarantee deed dated 02.08.2010 purportedly signed by the defendants 10, 11 and 14.
12.Since the respondents 1 & 2 / defendants 1 & 2 obtained exparte decree / default judgment as against the plaintiff from Superior Court of Justice at Ontario based on the alleged forged documents, inspite of the injunction granted by this Court as against the respondents 1 & 2 from initiating any legal proceedings by using the said documents, the plaintiff has taken out two applications, one in O.A.No.767 of 2013 and another in Application No.4619 of 2013.
13. O.A.No.767 of 2013 was filed for interim injunction restraining the respondents 1, 2 & 5/Defendants 1, 2 & 5 from in any manner proceeding to enforce or otherwise execute the decree of the Superior Court of Justice at Ontario, Canada dated 09.11.2012 in CV-12-2476-00, which had been obtained by the respondents 1 & 2 in violation of the order of this Court granted on 30.07.2012 and extended on 19.11.2012 in A.No.594 of 2012 in C.S.No.495/2012. In this application, this Court granted interim injunction on 04.10.2013 restraining the respondents 1, 2 & 5 from executing the decree of the Superior Court of Justice at Ontario, Canada.
14.Application No.4619 of 2013 has been filed to punish the defendants 1 & 2 for their willful disobedience, stating that the act of the defendants that in having knowledge of the injunction order dated 30.07.2012 that was extended on 19.11.2012, suppressing the same and obtaining orders from the Superior Court of Justice at Ontario, amounts to contemptuous conduct on their part. The fact that default judgment dated 09.11.2012 passed by the Superior Court of Justice at Ontario, Canada (herein after referred to as Canadian Court') does not refer to the above suit, proves that the defendants 1 & 2 had suppressed the pendency of this suit. Thus, such conduct on the part of the defendants 1 & 2 amounts to disobedience and breach of the injunction granted by this Court on 30.07.2012 & 19.11.2012 and therefore, they are liable to be punished in terms of Order 39 Rule 2A of the Civil Procedure Code. Therefore, the plaintiff filed Application No.4619 of 2013 to punish the defendants 1 & 2 for their willful disobedience of the orders of this Court.
15.The averments in the affidavits filed in support of O.A.No.767 of 2013 and Application No.4619 of 2013 are one and the same. In the said affidavits it has been stated that this Court vide order dated 30.07.2012 has granted an ex-parte interim injunction for a period of two weeks in Application No.594/2012 restraining the respondents 1, 2 & 5 from initiating or continuing any legal proceedings based on the alleged fabricated documents and further permitted private notice returnable by 13.08.2012. The applications were adjourned to 13.08.2012. The Applicant/plaintiff in compliance with Order 39 Rule 3 of the Civil Procedure Code had issued notice to the respondents 1, 2 & 5 / defendants 1, 2 & 5 and the counsel for Respondents 1, 2 & 5 / defendants 1, 2 & 5 had entered appearance on 15.10.2012 on which date the vakalats were filed before this Court. Despite attempts by the applicant/plaintiff to have the matter listed on 13.08.2012, the applicant/plaintiff did not succeed in the same and managed to have the applications listed on 19.11.2012, on which date this Court after hearing the submissions of the counsel, extended the interim injunction granted earlier on 30.07.2012. The applications not being listed on 13.08.2012 and the order of interim injunction dated 30.07.2012 being extended on 19.11.2012 by this Court; in law deems that the interim orders were always in force since 30.07.2012 even during the interregnum period viz., 30.08.2012 to 19.11.2012, until the application was dismissed. The applicant/plaintiff was informed by the Canadian counsel for respondents 1 & 2/defendants 1 & 2 vide letter dated 11.3.2013 that an exparte decree/default judgment dated 09.11.2012 was obtained against the applicant/plaintiff and the respondents 6 & 9 / defendants 6 & 9 from the Canadian Court based on the alleged extracts of the minutes dated 15.07.2010 and guarantee dated 2.8.2010 purportedly signed by the respondents 10, 11 & 14/defendants 10, 11 & 14. The respondents 1 & 2 / defendants 1 & 2, in complete disregard to the order of injunction granted by this Court, that was granted on 30.07.2012 and extended on 19.11.2012, despite notice of the same, and despite being represented by a counsel before this Court, proceeded to approach the Canadian Court, and by relying upon the forged and fabricated documents, obtained exparte orders on 09.11.2012. The conduct of the respondents 1 & 2 / defendants 1 & 2 in having knowledge of the injunction dated 30.07.2012 that was extended on 19.11.2012, suppressing the same and obtaining orders from the Canadian Court amounts to contemptuous conduct on their part. With the above averments, the plaintiff has filed the above said applications viz., O.A.No.767 of 2013 and A.No.4619 of 2013.
16.Thereafter, the 1st defendant has taken out an application in A.No.5089 of 2013 to vacate the order of interim injunction granted by this Court on 04.10.2013 in O.A.No.767 of 2013. In the affidavit filed in support of the Application No.5089 of 2013, it has been stated by the 1st defendant that on the date of the judgment of the Canadian Court, no order of this Court was in force. The proceedings were initiated in Canada on 11th June, 2012 ie., much prior to the initiation of the present suit by the plaintiff. The plaintiff was informed of the suit in Canadian Court vide., Email on 11.06.2012 and the statement of claim was served upon the plaintiff by the Sheriff of Mumbai on 26.07.2012, which was accepted by the Senior Manager of the plaintiff-Firm and this acceptance is before the grant of interim injunction by this Court on 30.07.2012. O.A.No.767 of 2013 filed by the plaintiff for restraining the defendants 1, 2 & 5 from in any manner proceeding to enforce or otherwise execute the decree of the Canadian Court, dated 09.11.2012 in CV-12-2476-00, is not maintainable in law. O.A.No.767 of 2013 does not disclose the fact that the interim order dated 30.07.2012 passed in O.A.No.594 of 2012 was vacated by the single Judge of this Court after hearing the parties on 18.01.2013. Against the said order, the plaintiff had filed O.S.A.Nos.209 & 210 of 2013 along with M.P.Nos.1 & 2 of 2013 praying that the respondents be restrained from relying upon the bill of exchange dated 08.03.2010, bill of exchange dated 31.08.2010, negotiable instrument dated 27.10.2010 and corporate guarantee dated 02.08.2010, and from instituting or continuing any legal proceedings by relying upon the above mentioned documents or the default judgment dated 09.11.2012 passed by the Canadian Court, in CV 12-2476-00. But, no relief was granted by the Division Bench of this Court in Miscellaneous petitions, but the said OSAs were allowed and the matter was remanded back to the learned Single Judge of this Court. The present dispute lies in certain business transactions through the defendants 6 & 9 and certain promissory notes that were issued to the 1st defendant by the defendants 6 & 9. All the promissory notes are printed on the plaintiff's letterhead and have been notarized by licensed Notary Public. On 02.08.2010 the plaintiff-company stood as guarantor for the loans availed by the defendants 6 & 9. The guarantee was executed by the defendants 10 & 11 on behalf of the plaintiff and they were expressly authorized to do the same by a resolution of the Board of directors of the plaintiff-company dated 15.07.2010. On the date of alleged fraud, the defendants 4, 8 & 9 were in the employment of the plaintiff-company and they were authorized to enter into the disputed transactions. The plaintiff also provided two cheques to the 5th defendant as security for the debt amounting to Rs.6,52,50,000/-. The cheques were signed by the 7th defendant, the plaintiff's General Manager of Finance at that time. There was no suppression of any fact and the proceedings in Canadian Court were initiated even before the filing of the present suit before this Court. Every opportunity was given to the plaintiff to appear before the Canadian Court and dispute the claim of the defendants 1 & 2. It is the plaintiff who is attempting to abuse legal processes to get out of a binding debt by belatedly raising allegations of fraud. Thus, the 1st defendant prayed for vacating the interim order dated 04.10.2013 granted by this Court in O.A.No.767 of 2013 in C.S.No.495 of 2012.
17.Initially on 26.11.2013 arguments were made by the learned senior counsel on both sides under the impression that the interim injunction granted by this Court on 30.07.2012 in O.A.No.594 of 2012 was not in force on 09.11.2012, on which date the exparte decree/default judgment was passed by the Canadian Court in CV 12-2476-00.
18.The submissions made by the learned senior counsel appearing for the respondents 1 & 2 were on the following lines:-
i)The suit in CV 12-2476-00 was filed before the Supreme Court of Justice at Ontario, Canada, as against the plaintiff and subsidiary companies of the plaintiff viz., D6 & D9 herein, even prior to the filing of the present suit in C.S.No.495 of 2012 before this Court. Though this Court has granted an interim injunction in O.A.No.594/2012 on 30.07.2012, restraining the defendants 1 & 2 from using the alleged fabricated documents in any legal proceedings, the said interim injunction was not in force on 09.11.2012, on which date the Court at Canada has passed the exparte decree/default judgment. Therefore, now the prayer made by the plaintiff in the main suit itself has become infructuous.
ii)Though this Court has granted interim injunction in O.A.No.594/2012 on 30.07.2012 restraining the defendants 1 & 2 from using the alleged fabricated documents in any legal proceedings for a period of two weeks, the said application was not listed before this Court after two weeks ie., on 13.08.2012 and the order of interim injunction granted on 30.07.2012 was extended only on 19.11.2012. In the meanwhile, an exparte decree/default judgment was passed by the Canadian Court on 9.11.2012, as the interim injunction granted by this Court was not in force in between 13.08.2012 to 19.11.2012. Hence, the application filed by the plaintiff in A.No.4619/2013 to punish the respondents 1 & 2 under order 39 Rule 2A of the Civil Procedure Code for willful disobedience of the orders of this Court is not legally maintainable and as such, the same is liable to be dismissed.
iii)Similarly, the application in A.No.767/2013 which has been filed by the plaintiff seeking to restrain the defendants 1, 2 & 5 from executing the decree of the Canadian Court on the allegation that the defendants 1 & 2 had obtained exparte decree/default judgment from the Canadian Court based on the alleged fabricated documents, inspite of the interim injunction granted by this Court in O.A.No.594/2012, is not legally maintainable. The prayer made in the application in O.A.No.767/2013 is an attempt to defeat the law process of another foreign country. If at all, there is any grievance as against the exparte decree/default judgment passed by the Canadian Court, the plaintiff should have moved the Canadian Court to set aside the exparte decree/default judgment or to adjudicate his defence in the proceedings that is going to be initiated by the defendants 1 & 2 in the Courts at India to execute the said decree.
19.By way of reply, the learned senior counsel appearing for the plaintiff submitted that_
i)the exparte decree/default judgment, dated 09.11.2012, was obtained by the defendants 1 & 2 by playing fraud on the Court at Canada. On account of the fact that the defendants 1 & 2 having knowledge of the interim injunction granted in OA.No.594/2012 by this Court, suppressed the same and obtained an exparte decree on 09.11.2012 from the Canadian Court, the exparte decree/default judgment obtained by the defendants 1 & 2 by playing fraud on the Court is non-est in the eye of law. Furthermore, the 1st respondent has obtained a decree in disobedience to the interim injunction granted by this Court. Had the Canadian Court been appraised of the interim injunction order passed by this Court, the Canadian Court might not have proceeded to pass a decree. Hence, the plaintiff is entitled to proceed with the present suit before this Court. Therefore, it is incorrect to state that the relief sought for in the present suit has become infructuous.
ii)Though this Court granted an interim injunction for a period of two weeks, inspite of the efforts taken by the plaintiff, after expiry of two weeks, the application was not listed before the Court ie., on 13.08.2012. However, the application was brought before this Court only on 19.11.2012 and the interim injunction order was extended on 19.11.2012. Therefore, in law, it deems that the interim injunction order was always in force even during the interregnum period ie., from 13.08.2012 to 19.11.2012, until the application was dismissed. Since the defendants 1 & 2 obtained exparte decree/default judgment on 09.11.2012 from the Canadian Court by producing the alleged fabricated documents, they are liable to be punished for disobedience of the order of the Court. Therefore, the application in A.No.4619 of 2013 has not become infructuous.
iii)A.No.767 of 2013 filed by the plaintiff seeking to restrain the defendants 1, 2 & 5 from executing the decree of the Canadian Court is maintainable, since the said exparte decree was obtained by playing fraud on Court, in total disobedience to the order of this Court dated 30.07.2012. The said exparte decree itself is null and void and it would not be a decree at all in the eye of law. Therefore, this Court has to proceed with the present suit, as if the said exparte decree passed by the Canadian Court is not in existence.
20.On 26.11.2013, this Court after hearing the arguments made on both sides, reserved the matter for orders. But, subsequently, this Court noticed that the interim injunction granted by this Court on 30.07.2012 in O.A.No.594 of 2012 has continuously been extended from 30.07.2012 till 19.10.2012 and thereafter, from 01.11.2012 again interim injunction was extended by this Court till 19.11.2012 and on 19.11.2012 interim injunction was extended until further orders. The interim injunction was not in existence only between the period from 19.10.2012 to 31.10.2012. On the date of exparte decree passed by the Canadian Court ie., on 09.11.2012, the interim injunction granted by this Court in O.A.No.594 of 2012 was in existence. Hence, the matter was reopened and posted before the Court for re-arguments.
21.At this juncture, the plaintiff has filed two applications in A.Nos.6292 & 6293 of 2013. The application in A.No.6292 of 2013 has been filed seeking to permit the plaintiff to amend the plaint filed in the suit in C.S.No.495 of 2012. The application in A.No.6293 of 2013 has been filed to permit the plaintiff to amend the application in A.No.4619/2013 (which was filed to punish the defendants 1 & 2 for disobedience of the order of this Court), by including reference to the order dated 01.11.2012 passed in A.No.594/2012.
22.The prayer for amendment made by the plaintiff in A.No.6292 of 2013 is as follows:-
to permit the applicant/plaintiff to amend the plaint filed in C.S.No.495/2012 by including the following paragraphs after paragraphs 21 of the Plaint and to include a prayer consequently:
22)The fraudulent conduct of the defendants 1, 2, 5 and others did not cease only in forging and fabricating various documents but also extended to deceiving and defrauding the Court in Canada.
23)Applications viz., 593 and 594/2012 were filed in C.S.No.495 of 2012.
24)This Hon'ble Court vide order dated 30.07.2012 was pleased to grant an ex-parte interim injunction in A.No.594/2012 for a period of two weeks and further, permitted private notice returnable by 13/8/2012, thereby restraining the 1st, 2nd and 5th Defendants and their representatives from instituting or continuing any legal proceeding with fabricated documents mentioned in Para 6 of this Plaint, pending disposal of the above suit.
25)The Plaintiff herein, had duly issued notices to the Defendants 1, 2 and 5 and the counsel for Defendants 1, 2 and 5 had entered appearance on 15.10.2012, on which date the vakalats were filed before this Hon'ble Court.
26)Subsequently, application Nos.593 and 594 of 2012 filed in C.S.Nos.495/2012 were listed on 01/11/2012, on which date the order of injunction granted on 30.07.2012 was extended further and this Hon'ble Court adjourned the case to 19/11/2012. When the application was listed on 19/11/2012, the injunction granted earlier was extended until further orders.
27)Meanwhile, the plaintiff was informed by a Canadian counsel for Defendants Nos.1 and 2 vide letter dated 11/3/2013 that an ex-parte decree and default judgment dated 9/11/2012 was obtained against the Plaintiff and the Defendants 6 and 9 herein from the Superior Court of Justice at Ontario. The Plaintiff states that such a Decree and default judgment was obtained notwithstanding the operation of the interim injunction against Defendants 1, 2 and 5 from initiating or continuing any proceedings based on the alleged extracts of the minutes dated 15/7/2010 and Guarantee dated 2/8/2010 purportedly signed by Defendants 10, 11 and 14. It is submitted that the Defendants 1 and 2 in complete disregard to the order of injunction granted by this Hon'ble Court on 30/7/2012 which was extended on 01/11/2012 and 19/11/2012, despite notice of the same and despite being represented by a Counsel before this Hon'ble Court (vakalat filed on 15/10/2012), proceeded to approach the Superior Court of Justice at Ontario, relied upon the forged and fabricated documents, and obtained ex-parte orders on 09/11/2012 ie., when the order of interim injunction was in force.
28)The Defendants 1 and 2 are deemed to have knowledge of the orders dated 30/07/2012, 01/11/2012 and 19/11/2012 on account of having received notice of the order dated 30/07/2012 and entering appearance by their Counsel filing vakalat on 15/10/2012, hence, the said Defendants cannot claim ignorance of these orders.
29)The conduct of the Defendants 1 and 2 in having knowledge of the injunction dated 30/7/2012 that was extended on 01/11/2012 and 19/11/2012, deliberately suppressing the same and obtaining orders from the Superior Court of Justice at Ontario amounts to fraudulent conduct on their part. The fact that the default judgment dated 09/11/2012 does not refer to the above suit nor the interim orders passed viz., orders dated 30/07/2012, 01/11/2012 and 19.11/2012 proves that the Defendants 1 and 2 have deliberately suppressed this fact from the Superior Court of Justice, Ontario and flouted the interim orders of this Hon'ble Court. Thus, such conduct on the part of Defendants 1 and 2 in deliberately disobeying the orders of this Hon'ble Court and obtaining a decree by playing fraud on the Courts in Canada by suppressing the facts that the documents relied upon are disputed and pending inquiry would result in the decree of the Superior Court of Justice, Ontario, Canada dated 09/11/2012 in CV-12-2476-00 being null and void and cannot be said to be a Judgment or Order.
30)Hence, the Defendants is advised to state that the Decree and Default Judgment of the Superior Court of Justice, Ontario, Canada dated 09/11/2012 in CV-12-2476-00 is in nullity and not binding on the Plaintiff nor can be treated as a Decree or Judgment.
Prayer x: To declare that the Decree and Default Judgment of the Superior Court of Justice, Ontario, Canada dated 09/11/2012 in CV-12-2476-00 is null, void, non-est in law and not binding on Plaintiff, the same having been obtained by Defendants 1 and 2 in violation of the injunction orders passed by this Hon'ble Court in A.No.594/2012 and on the basis of forged and fabricated documents.
Similarly, the prayer of amendment sought for by the plaintiff in A.No.6293 of 2013 to amend the Application No.4619/2013 ie., the application filed by the Plaintiff to punish the defendants 1 and 2 for disobedience of the order of this Court, is as follows:-
to permit the applicant to amend the application viz., A.No.4619/2012 in C.S.No.495/2012 by including reference to the order dated 01/11/2012 passed in A.No.594/2012 in C.S.No.495/2012 at paragraphs 7, 9, 10 of the affidavit filed in support of A.No.4619/2013 and the prayer thereof as follows:
Paragraph 7: The conduct of the respondents 1 and 2 in having knowledge of the injunction dated 30/7/2012 that was extended on 01/11/2012 and 19/11/2012 (which is in the nature of an anti suit injunction), suppressing the same and obtaining orders from the Superior Court of Justice at Ontario amounts to contemptuous conduct on their part....
Paragraph 9: Therefore, it is just and necessary to grant an ad-interim injunction restraining the respondents 1 and 2 from in any manner enforcing or otherwise executing the decree dated 09/11/2012 passed by the Superior Court of Justice, Ontario on the basis of forged and fabricated document which had been obtained by the Respondents 1 and 2 in violation of this Hon'ble Court's order dated 30/07/2012, 01/11/2012 and 19.11.2012 pending disposal of the Suit.
Paragraph 10: The balance of convenience is in favour of the Applicant as the Respondents 1 and 2 had proceeded to obtain exparte orders from the Superior Court of Justice, Ontario on the basis of forged and fabricated documents and in complete disregard of the orders passed by this Hon'ble Court on 30/07/2012, 01/11/2012 and 19/11/2012....
Prayer: Punish the Respondents 1 and 2 under Order 39 Rule 2A of the Civil Procedure Code for wilful disobedience of the Orders of this Hon'ble Court dated 30/07/2012, 01/11/2012 and 19/11/2012 in Application No.594/2012.
23.Opposing the amendment applications filed by the plaintiff, the 1st defendant has filed counter affidavits stating that on the date of default judgment passed by the Canadian Court, even the plaintiff was not aware of the extension of the interim injunction order granted by this Court in O.A.No.594/2012, which can be evidenced from the affidavit filed by the plaintiff in A.No.4619/2013. Now, taking advantage of this fact, the plaintiff tries to delay the proceedings by filing the present applications for amendment. Any application to amend the plaint should be moved at the earliest possible opportunity from the date of notice of the order. It is clear from the records that more than a year has lapsed since that opportunity was available to the plaintiff/applicant herein. The plaintiff/applicant is not only trying to change the cause of action, but also tried to introduce an entirely new case. Thus, they sought for dismissal of the amendment applications.
24.The learned senior counsel appearing for the plaintiff submitted that the interim injunction granted by this Court in O.A.No.594/2012 was in force even on the date of passing the exparte decree/ default judgment by the Canadian Court. In fact, immediately after obtaining the interim injunction in O.A.No.594/2012, the plaintiff in compliance with Order 39 Rule 3 of the Civil Procedure Code had issued notice to the defendants 1, 2 & 5 and their counsel had also entered appearance on 15.10.2012, on which date the vakalats were filed before this Court. Therefore, they were informed about the interim injunction order passed by this Court in O.A.No.594/2012 dated 30.07.2012, restraining them from using the alleged fabricated documents in any legal proceedings. Inspite of the interim injunction passed by this Court, based on the alleged forged documents, the defendants 1 & 2 have obtained a exparte decree/default judgment from the Canadian Court. Hence, the conduct of the defendants 1 & 2, in having knowledge of the interim injunction order which was extended on 01.11.2012, suppressing the same and obtaining default decree/judgment from the Canadian Court would amount to contemptuous conduct on the part of the defendants 1 & 2. Therefore, the defendants 1 & 2 are liable to be punished under Order 39 Rule 2A of the Civil Procedure Code for willful disobedience of the orders of this Court.
25.In this regard, the learned senior counsel appearing for the plaintiff has relied upon the judgment reported in 1997(3) SCC 443 [Tayabbahai Vs. Hind Rubber Industries Pvt., Ltd.], wherein it has been held that two consequences will follow from a breach of order. The first is that anyone who disobeys an order of the Court is in contempt and may be punished by committal or attachment or otherwise. The second is that no application to the Court by such person will be entertained until he has been purged himself of his contempt.
26.Further, by relying upon the judgment reported in AIR 1966 (MAD) 53 [N.Senapati Vs. Shri Amabal Mills, the learned senior counsel appearing for the plaintiff submitted that any act done in disobedience of an interim order of the Court is null and void. The factual aspect of that case would show that the suit was filed by a shareholder of the company before the District Munsif Court, Coimbatore, against the respondents 1 & 2 therein for a permanent injunction, restraining them from convening or conducting an extraordinary general meeting, which was scheduled to be held on 14.12.1964, in pursuance of a notice issued by the 2nd respondent therein. Along with the plaint, the plaintiff therein filed I.A.No.1840/1964 for an interim injunction pending disposal of the suit. The learned District Munsif, Coimbatore, made an order in open Court for an interim injunction and notice returnable on 16.06.1965. While so, on 14th December 1964, the 11th respondent therein viz., the advocate and legal adviser of the company, appeared in Court, presented a vakalat and also an unnumbered application, requesting the Court to advance the hearing of the application in which interim injunction had been granted. But, extraordinary general meeting was held on 14th December 1964 at 9.30 am. Hence, a contempt petition was filed by the petitioner therein against the respondents 1 & 2 therein for deliberately disobedience of the order of the Court. Under such circumstances, in that case, the Division Bench of this Court has held that the meeting, having been conducted in disobedience of the order of the Court, is void and that will equally apply to the resolution or resolutions passed therein.
27.The learned senior counsel appearing for the plaintiff has also relied upon the judgment reported in AIR 1975 (Mad) 270 [Century Flour Mills Ltd. and another Vs. S.Suppiah and another), wherein the Division Bench of this Court has held that where in violation of a stay order of injunction against a party, something has been done in disobedience, it will be the duty of the Court as a policy to set the wrong right and not allow the perpetuation of the wrong doing and the inherent power of the Court will not only be available in such a case, but it is bound to be exercised in that manner in the interest of justice. In the last paragraph of the said judgment, the Division Bench has directed the parties to be put back in the same position as they stood immediately prior to the service of the stay order of this Court.
28.By relying upon the above said judgment, the learned senior counsel for the plaintiff submitted that in the instant case also, inspite of the interim injunction granted by this Court on 30.07.2012, by suppressing the same, the defendants 1 & 2 have obtained a exparte decree/default judgment from the Canadian Court by playing fraud on the Court. Therefore, the expare decree/default judgment obtained by the defendants 1 & 2 is null and void. Therefore, this Court has to proceed with the suit, as if no such a default judgment is in existence. Therefore, it is incorrect to state that the prayer made in the suit has become infructuous. In support of his contentions, the learned senior counsel has also relied upon the judgment reported in AIR (1994) SC 853 [S.P.Chengalvaraya Naidu (dead) by L.Rs., V.Jagannath (dead) by L.Rs and others], (2003) 8 SCC 319 [Ram Chandra Singh Vs. Savitri Devi and others] and AIR 2007 SC 1546 [A.V.Papayya Sastry and ors. Vs. Government of A.P. And ors].
29.Per contra, the learned senior counsel appearing for the 1st defendant submitted that both the plaintiff and the defendants 1 & 2 were not aware of the fact that the interim injunction granted by this Court was in force on 09.11.2012, on which date the exparte decree/default judgment was passed by the Canadian Court. Application No.4619/2013 for punishing the respondents 1, 2 & 5 under Order 39 Rule 2A of the Civil Procedure Code has been filed after a lapse of more than eight months after the interim injunction order in O.A.No.594/2012 was vacated by the learned Single Judge on 18.01.2013. On the date of filing the application A.No.4619/2013, the interim injunction was not in force. Therefore, the application A.No.4619/2013 itself is not maintainable. In this regard, the learned senior counsel has relied upon the judgment reported in AIR 1985 P & H 299 [Rachpal Singh Vs. Gurdashan Singh] and AIR 1961 SC 1367 [B.K.Kar Vs. The Hon'ble Chief Justice] and submitted that to hold a person guilty of contempt, it must be shown that the disobedience was both wilful and intentional. The learned senior counsel for the 1st defendant has also relied upon the judgment reported in 1970(3) SCC 98 [Aligarh Municipal Board Vs. Ekka Tonga Mazdoor Union] in support of his contention that those who assert and make the charge of contempt must prove the fact beyond reasonable doubt and in case of any doubt, the benefit ought to go the person charged.
30.With regard to the submission made by the learned senior counsel for the plaintiff by relying upon the judgment in Century Flour Mills Vs. S.Suppiah (citied supra), the learned senior counsel for the 1st defendant submitted that in that case, the Full Bench of this Court by referring to a Supreme Court Judgment, pointed out that a stay order is usually addressed to a Court, whereas an injunction order is passed against the specific parties. Once the Court has knowledge of the stay order, it must stay its hand; if it does not do so, it acts illegally. Significantly, it was also pointed out that if the Court had no knowledge of the stay order, it does not lose jurisdiction to deal with the matter at hand. Whereas in the instant case, the injunction was against the defendants 1, 2 & 5 not to use documents. As pointed out earlier, both the parties were under the impression that the injunction had lapsed on 14.08.2012. Therefore, on facts, conduct of the said defendants is also not blameworthy. Furthermore, the Canadian Court had no knowledge of the extension of the injunction order. In the absence of such knowledge, the order passed by the Canadian Court is perfectly valid. Thus, the learned senior counsel appearing for the 1st defendant submitted that the submission made by the learned senior counsel for the plaintiff relying upon the judgment reported in Century Flour Mills Vs. S.Suppiah, is not correct.
31.Further, the learned senior counsel appearing for the 1st defendant submitted that the very suit itself is not maintainable. An anti-suit injunction is a species of injunction, where a Court restrains the defendants from instituting or prosecuting a case in another Court usually a subordinate Court including a foreign Court. The Courts in India have power to issue anti-suit injunction to a party over which it has personal jurisdiction. So far as the present suit is concerned, the suit has been filed by the plaintiff only on the allegation that the documents executed by the defendants 6 & 9 are forged documents. Thus, the plaintiff sought for an interim injunction restraining the defendants 1, 2 & 5 from using the said alleged forged documents in any legal proceedings. When the plaintiff alleged that the documents are forged, they have to challenge the same only in the suit filed before the Canadian Court and they cannot file the anti-suit for injunction before this Court.
32.By way of reply, the learned senior counsel for the plaintiff by relying upon the judgment reported in (2003) 4 SCC 341 [Modi Entertainment Network Vs. W.S.G. Cricket PTE Ltd.,] submitted that anti-suit injunction can be granted in the matter of this nature. Following the said judgment, a Division Bench of this Court in PPN Power Generating Company Ltd., Vs. PPN (Mauritius) Company and Ors [2004 (5) CTC 1], has observed as follows:-
It is beneficial to deal with the scope of 'anti-suit injunction' in general which are culled out from various decisions. The same is not defined or dealt with in the Code of Civil Procedure.
(i)When a Court restrains a party to a suit/proceedings before it from instituting or prosecuting a case in another Court, including a foreign Court, it is called anti-suit injunction.
(ii)Anti-suit injunction can be issued on the ground of equity and good conscience.
(iii)Anti-suit injunction can be granted 'to avoid injustice'.
(iv)If foreign proceedings are oppressive or vexatious, such anti-suit injunction can be granted.
(v)To prevent the administration of justice being prevented for unjust ends of justice, anti-suit injunction can be granted with respect to foreign proceedings.
(vi)There must be an equity which entitles one party as against the other, to an injunction to restrain the other from proceeding in the foreign Court.
(vii)To protect the Courts' own proceedings and process, anti-suit injunction can be granted.
(viii)If the bringing of the legal proceedings involved unconscionable conduct or un-conscientious exercise of legal right, such anti-suit injunction may be granted.
(ix)Though the international anit-suit injunction operates only against the parties, it effectively restricts the jurisdiction of a foreign sovereign's Courts.
(x)International anti-suit injunction can be granted whenever there is a duplication of parties and issues and the Court determines with the prosecution of simultaneous proceedings would frustrate the speedy and effective determination of the case.
(xi)There is no precious Rules governing the anti-suit injunction.
(xii)Only in the most compelling circumstances, a Court should exercise its discretion to issue an anti-suit injunction.
(xiii)Such injunction is required to prevent irreparable and miscarriage of justice and to prevent the litigants' evasion of the important public policies of the forum.
(xiv)The Court should exercise such a power granting anti-suit injunction to enjoin foreign suits sparingly and only in very special circumstances.
33.The learned senior counsel appearing for the defendants 6 & 9 has also made an elaborate argument by inviting the attention of this Court to various documents and submitted that the defendants 6 & 9, subsidiary companies of the plaintiff, have never received even a single rupee from the defendants 1, 2 & 5 and that the defendants 6 & 9 did not have any dealing with the defendants 1, 2 & 5. The defendants 6 & 9 were not even in India on the date on which the alleged forged documents are said to have been executed in India.
34.The learned Counsel appearing for the defendants 11 to 13 submitted that these defendants never signed any document in favour of the defendants 1 & 2 and they also filed an affidavit to that effect.
35.I have carefully heard the submissions made on either side and perused the materials available on record.
36.In view of the submissions made on either side, the following questions fall for consideration:-
(1)whether in view of the default judgment passed by the Superior Court of Justice at Ontario in Canada, the prayer in the present suit has become infructuous?
(2)Whether the defendants 1 & 2 are liable to be punished for the alleged disobedience to the interim injunction order passed by this Court in O.A.No.594/2012?
(3)Whether the interim injunction granted by this Court in A.No.767/2013 restraining the defendants 1 & 2 from executing the default decree granted by the Canadian Court is sustainable in law?
(4)Whether the anti-suit for injunction filed by the plaintiff is maintainable?
(5)Whether the applications filed by the plaintiff for amendment of the plaint in the suit and amendment of the averments in O.A.No.4619/2013, are liable to be allowed?
37(1) Question No.(1):- The suit was filed by the plaintiff mainly on the allegation that by creating forged documents, as if the subsidiary companies of the plaintiff viz. D6 & D9 have obtained loan from the defendant No.1 and since the said loan amount was not repaid, the defendants 1 & 2 have filed a suit before the Canadian Court as against the plaintiff herein and the defendants 6 and 9. Hence, the plaintiff filed the anti-suit for injunction to restrain the defendants 1, 2 & 5 from using the alleged forged documents in any legal proceedings. This Court has also granted interim injunction in O.A.No.594/2012 on 30.07.2012 restraining the defendants 1, 2 & 5 from using the alleged fabricated documents in any legal proceedings, for a period of two weeks ie., upto 14.08.2012. This fact was brought to the notice of the Canadian Court. But, though the interim injunction was extended on 14.08.2012, neither the plaintiff nor the defendants were aware of the extension of interim injunction, and as such, the same was not brought to the knowledge of the Canadian Court. In the meanwhile, the Canadian Court has passed a default judgmment. But, subsequently, it was noticed that even on 09.11.2012, on which date the default judgment was passed by the Canadian Court, the interim injunction granted by this Court was in force.
37(2) But, it is the submission of the learned Senior Counsel appearing for the plaintiff that the respondents 1 & 2 having sufficient knowledge of the interim injunction granted by this Court, clandestinely obtained the exparte decree on 09.11.2012 from the Canadian Court, in violation of the interim order passed by this Court. Had the Canadian Court been appraised of the extension of the interim injunction order, the Canadian Court might not have proceeded to pass the default decree. Since the decree was obtained by playing fraud on the Court, the said decree itself is null and void and it would not be a decree at all in the eyes of law. Hence, according to the plaintiff, it cannot be said that the prayer sought for in the present suit has become infructuous. In support of this contention, the learned senior counsel appearing for the plaintiff also relied upon the judgment reported in AIR (1994) SC 853 [S.P.Chengalvaraya Naidu (dead) by L.Rs., V.Jagannath (dead) by L.Rs and others], wherein it has been held that even non-production of documents or non-mention of a material fact tantamounts to playing fraud on the Court. Similarly, in the judgment reported in (2003) 8 SCC 319 [Ram Chandra Singh Vs. Savitri Devi and others], it has been held that Fraud as is well known vitiates every solemn act. For the same proposition of law, the learned senior counsel appearing for the plaintiff relied upon the judgment reported in AIR 2007 SC 1546 [A.V.Papayya Sastry and ors. Vs. Government of A.P. And ors]. Thus, by relying upon the above said judgments, the learned senior counsel appearing for the plaintiff submitted that the since the decree was obtained by playing fraud on the Court by the defendants 1 & 2, the present suit is maintainable before this Court.
37(3)But, on perusal of the material available on record, this Court finds that the interim injunction was granted in O.A.No.594/2012 on 30.07.2012 for a period of two weeks ie., upto to 14.08.2012. Interim injunction order dated 30.07.2012 granted by this Court was also brought to the knowledge of the Canadian Court. Though the interim injunction was subsequently extended, none of the parties were aware of the extension of interim injunction. That is why, originally both the counsel had made arguments under the impression that the injunction was not extended after 14.08.2012 till 19.11.2012. This Court only noticed that the injunction was in force on 09.11.2012, on which date default decree/judgment was passed by the Canadian Court. Thereafter, only the matter was again posted before the Court for re-argument. This factual aspect would show that the defendants are not aware of the fact that the interim injunction was in force, when the Canadian Court passed the default decree/judgment. That is the reason why they were not able to appraise of the Canadian Court about the extension of the injunction order passed by this Court. Under such circumstances, this Court does not find any wilful disobedience to the order of this Court on the part of the defendants 1 & 2, in obtaining the default judgment from Canadian Court. Therefore, the judgments relied upon by the learned senior counsel appearing for the plaintiffs cannot be made applicable to the facts of the present case. In fact, the judgment relied upon by the learned senior counsel appearing for the 1st defendant, reported in AIR 1941 Mad 387 (T.Sundaram Pillai Vs. Kandaswami Pillai) gives a fitting answer for this issue. The factual aspect of that case would show that the appellant in that case is the holder of decree obtained in the Court of the District Munsif at Trivandrum against two defendants. The first defendant did not contest his plaint in Trivandrum. The second defendant, after being first set exparte, had the exparte order set aside and then filed a written statement in which he attacked the plaintiff's claim in a number of ways, one of which was by questioning the jurisdiction of the Trivandrum Court. After filing the written statement, however, he withdrew from further opposition and as a result of that a decree was passed in favour of the appellant against both the defendants. Thereafter, the appellant applied in the Court of the District Munsif of Sattur, Ramand District, to execute the decree which he had thus obtained in Trivandrum against both the defendants. The defendants therein resisted the execution application on the ground that under Section 13 of the Code of Civil Procedure, the Judgment of Trivandrum Court (comes under the then Trivandrum samasthan) could not be executed in British India. But, the said objection was overruled by the District Munsif, but the learned Sub-Judge of Ramnad, on appeal, set aside the District Munsif's order. Aggrieved over the same, appeal was filed before this Court. In that appeal this Court has held as follows:-
5. Clause (e) in Section 13 says that the judgment of a foreign Court cannot be executed in British India where it has been obtained by fraud. This is a point which was not apparently made before the learned District Munsif but in appeal before me the learned Advocate for the respondent relies upon it also. All that can be said on this point is that the case brought by the plaintiff was a false case and that the first defendant assisted him in obtaining a decree by withdrawing from any resistance. It does not seem to me that the words by fraud can, possibly, be applied to circumstances such as these. It cannot be argued that merely because a plaintiff obtains a decree upon evidence which is believed by the Court but which in fact is not true, he has obtained that decree by fraud. There must be fraud connected with the procedure in the suit itself to bring the matter within this clause. This clause also therefore does not apply to the present case.
6. Finally Clause (f) in Section 13 says that the judgment of a foreign Court cannot be executed in British India where it sustains a claim founded on a breach of any law in force in British India. It has already been stated that the appellant asserted in his plaint in Trivandrum that both the defendants had promised to repay him the amount which he spent on the first defendants marriage. Now both the defendants, at that time were minors according to the law in force in British India. For although they were above the age of 18 they had guardians appointed for them under the Guardian and Wards Act and therefore did not attain majority until the age of 21. It is argued therefore that the plaintiff appellant brought his case upon a contract which according to the Contract Act in force in British India he was not competent to make with the defendants and that this is a breach of the law as it is observed in this country. The learned District Munsif however points out that an examination of the plaint will show that it was not on this ground alone that the plaintiff brought his claim. No doubt he asserted that there was this agreement to repay him the money which he had spent, but he claimed repayment of that money independently of the agreement as money which was due from the joint family consisting of the two defendants to reimburse him for what he had spent upon a marriage which was a duty devolving upon that family. The learned District Munsif held accordingly that the appellant would have been able to sustain a good case for a decree under the provisions of Section 68 of the Contract Act. Section 68 of the Contract Act deals with necessaries and it is perhaps a little difficult at first sight to see why the marriage of a young man should be considered a necessary within the meaning of that section. But I have been shown an authority of a Bench of the Patna High Court in Pathak Kali Charan Ram v. Ram Devi Ram (1917) 42 I.C. 963, which has applied Section 68 to very similar circumstances. In any case, whether that be the correct view to take; of Section 68 or not is I think, of no importance in the decision of this appeal. Clause (f.) of Section 13 says where it sustains a claim founded on a breach of any law in force in British India. This claim is founded partly perhaps upon a breach of the Contract Act, but also partly upon a claim under the Contract Act which in no way involves its breach. Whether that claim is a good or a bad one it is not for me now to decide. The District Munsif of Trivandrum has given a decree to the appellant and that decree sustains a claim which was not wholly founded upon a breach of the Contract Act. It seems to me therefore that the appellant cannot be prevented by Cl (f) of Section 13 from executing his decree in British India. A reading of the said judgment would show that a decree obtained by a person in a foreign country upon evidence which is believed by that Court cannot be said as a decree obtained by fraud. Only if a fraud is committed in the procedures connected with the suit itself, the same will fall under the definition of a foreign decree obtained by fraud.
37(4)In the instant case, it is the contention of the learned senior counsel for the plaintiff that the subsidiary companies of the plaintiff viz., D6 & D9 never obtained loan from the defendants 1 & 2 and never executed any document. But, by creating forged documents, the defendants 1, 2 & 5 obtained a decree from the Canadian Court. Hence, it is apparent, the main contention of the plaintiff at the time of filing the present suit is that the defendants 1 & 2 are intending to obtain a decree from the Court with the help of forged documents. In that case, the remedy available to the plaintiff is only before the Canadian Court and to put forth their defence, instead of filing the present suit, preventing the defendants 1 & 2 from filing alleged forged documents in any legal proceedings. But, in the instant case, the plaintiff has failed to do so, inspite of the notice served on them, in the proceedings pending before the Canadian Court. However, the Canadian Court believing the evidence produced by the defendant No.1 has granted a decree. Therefore, the decree obtained by the defendants 1 & 2 from the Canadian Court cannot be treated as a decree obtained by fraud, since the said decree has been obtained upon evidence. Since the default decree has already been passed on the evidence adduced by the defendants by the Canadian Court, now nothing survives in the suit for adjudication. Under such circumstances, this Court is of the considered view, that the prayer in the present suit has become infructuous.
38(1). Question No.(2):- It is the contention of the learned senior counsel appearing for the plaintiff that when the interim injunction in O.A.No.594/2012 was in force as against the defendants 1, 2 & 5, by using the alleged forged documents, they have obtained a decree from the Canadian Court, which is utterly violative to the order passed by this Court. But, as observed earlier, both the parties had no knowledge about the extension of interim injunction after 14.08.212. In fact, the 1st defendant has brought to the knowledge of the Canadian Court about the interim Injunction granted by this Court on 30.07.2012 for a period of two weeks. The factual aspects of the case and the materials available on record would show that both the plaintiff as well as the defendants were not aware of the extension of the interim injunction. That is why, the defendants 1 & 2 did not appraise the Canadian Court about the subsequent extension of the interim injunction. The Canadian Court has passed the decree only after two weeks period of injunction ie., only after 14.08.2012. Therefore, this Court does not find any disobedience to the order of this Court on the part of the defendants 1 & 2. Above all, the interim injunction granted by this Court, subsequently was vacated by this Court on 18.1.2013. Thereafter only the present application for punishing the concerned defendants for disobedience of the order of this Court has been filed by the plaintiff on 01.10.2013, much later to the order passed in O.A.No.594/2012 vacating the interim order dated 30.07.2012. Though the plaintiff had filed O.S.As.209 & 210 of 2013 as against the order dated 18.1.2013 vacating the interim injunction, in the appeal the interim injunction was not restored, on the other hand, the matter was only remanded back to the learned Single Judge for afresh disposal. Therefore, this Court is of the considered opinion that the application in A.No.4619 of 2013 filed to punish the defendants 1, 2 & 5 is liable to be dismissed, since there is no willful disobedience to the order of this Court on the part of the defendants, particularly when on the date of filing the application, the injunction was not in force. In this regard, a reference could be placed in the judgment, relied upon by the learned senior counsel appearing for the 1st defendant, reported in AIR 1985 P & H 299 (Rachpal Singh Vs. Gurdarshan Singh), wherein it has been held that_ the provisions of Rule 2A are not meant to punish the person guilty of disobedience and instead their purpose in substance is only to enforce an injunction, the answer to the question involved has to be that no intimation or continuation of the proceedings under the aforementioned rule would be competent after the ad-interim injunction has been vacated. 38(2) In another judgment reported in AIR 1961 SC 1367 (B.K.Kar Vs. The Hon'ble Chief Justice), it has been held that there is no room for inferring an intention to disobey an order unless the person charged had knowledge of the order. In the same judgment, it has been held that there may be possibly a case where disobedience is accidental, in which case there would be no contempt. In the instant case also, it is admitted that both the parties were not aware of the extension of the interim injunction order. Therefore, this Court does not find any disobedience to the order of this Court on the part of the defendants. Moreover, the application has been filed only after the interim injunction has been vacated. Hence, the same is liable to be dismissed.
39(1). Question No.(3):- It is the main contention of the learned senior counsel for the plaintiff that since the exparte decree/default judgment was obtained by playing fraud, it has to be construed that the said decree is null and void and it would not be a decree at all in the eye of law. Therefore, the defendants 1 & 2 should be restrained from enforcing/executing the said decree. In support of his contention, the learned senior counsel appearing for the plaintiff has also relied upon the judgment reported in AIR 1975 (Mad) 270 [Century Flour Mills Ltd. and another Vs. S.Suppiah and another), wherein the Division Bench of this Court has held that where in violation of a stay order of injunction against a party, something has been done in disobedience, it will be the duty of the Court as a policy to set the wrong right and not allow the perpetuation of the wrong doing and the inherent power of the Court will not only be available in such a case, but it is bound to be exercised in that manner in the interest of justice. In the last para of the said judgment, the Division Bench has directed the parties to be put back in the same position as they stood immediately prior to the service of the stay order of this Court. But, a careful reading of the said judgment would show that it has been pointed out that the stay order is usually addressed to a Court, whereas an injunction order is passed against the specific parties. Once the Court has knowledge of the stay order, it must stay its hand; if it does not do so, it acts illegally. Significantly, it was also pointed out that if the Court had no knowledge of the stay order, it does not lose jurisdiction to deal with the matter at hand.
39(2)Whereas in the instant case, the injunction was against the defendants 1, 2 & 5 not to use documents. As pointed out earlier, both the parties were under the impression that the injunction had lapsed on 14.08.2012. Therefore, the defendants were not in a position to appraise the Canadian Court about the extension of the interim injunction order. In the absence of any such knowledge, the exparte decree passed by the Canadian Court is perfectly valid. The objection of the plaintiff with regard to the exparte decree can be taken only before the executing Court. The remedy available to the plaintiff is to file recall petition before the Canadian Court and ask for recalling the exparte decree. The plaintiff cannot prevent the defendants from executing the foreign decree in the present suit before this Court. Therefore, the injunction granted by this Court in O.A.No.767 of 2013 is liable to be vacated. Accordingly, the same is vacated.
40(1). Question No.(4):- It is the contention of the learned senior counsel appearing for the plaintiff that an anti-suit injunction is a species of injunction, where a Court restrains the defendants from instituting or prosecuting a case in another Court, usually a subordinate Court including a foreign Court. The Courts in India have power to issue anti-suit injunction to a party over which it has personal jurisdiction. In this regard, the learned senior counsel has relied upon the judgment reported in (2003) 4 SCC 341 [Modi Entertainment Network and anr. Vs. W.S.G.Cricket PTE Ltd.,].
40(2)But, this Court finds that in the instant case, the plaintiff has filed the present suit only on the ground that with the help of forged documents, the defendants are trying to get a decree against the plaintiff. The allegation of the plaintiff that the defendants 1 & 2 obtained exparte decree based on the forged documents will not serve as a ground to file an anti-suit for injunction, since the question as to whether the documents have been forged or not is a matter of evidence, which has to be adjudicated before the concerned Court. Therefore, this Court is of the considered opinion that the present suit for injunction is not maintainable.
41. Question No.(5):- The present suit has been filed on 26.07.2012. The exparte decree was passed by the Canadian Court on 09.11.2012. The present amendment applications in A.Nos.6292 & 6293 of 2013 have been filed only on 13.12.2013, that too, after this Court reopened the case and posted the same for re-argument. Further more, in the earlier paragraphs, this Court has already come to the conclusion that the prayer in the present suit has become infructuous and not maintainable. Now, by filing the present amendment application, the plaintiff is trying to prevent the defendants from executing the decree passed by the Canadian Court. Under such circumstances, this Court does not find any valid ground to allow the amendment applications and they are liable to be dismissed and accordingly, the same are dismissed.
In the result, O.A.Nos.593 & 594 of 2012 are dismissed. O.A.No.767 of 2013 is dismissed and the interim injunction is vacated. Consequently, A.No.5089 of 2013 is allowed. A.Nos.6292 & 6293 of 2013 are dismissed. A.No.4297 of 2013 is also dismissed. However, in the event of initiating any proceeding by the defendants 1 & 2 to execute the decree passed by the Canadian Court, the plaintiff is at liberty to raise all their defence, which are available to them, as per law, pertaining to the said proceedings.
28.3.2014 Internet : Yes / No Index : Yes / No ssv R.SUBBIAH, J., ssv Pre-delivery order in O.A Nos.593 & 594 of 2012 and A.No.4619 of 2013 and O.ANo.767 of 2013 and A.No.5089 of 2013 and A.Nos.6292 & 6293 of 2013 and A.No.4297 of 2013 in C.S.No.495 of 2012 28.3.2014