Himachal Pradesh High Court
Kenny Abraham vs K.N. Modi on 8 March, 2022
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
ON THE 8th DAY OF MARCH, 2022
BEFORE
.
HON'BLE MR. JUSTICE AJAY MOHAN GOEL
CIVIL MISC. PETITION MAIN (ORIGINAL) Nos. 237 & 236 OF
2021
Between:
CMPMO No. 237 of 2021
KENNY ABRAHAM, DIRECTOR,
SUPERMAX PERSONAL CARE
PRIVATE LIMITED, LBS ROAD,
TEEN HAATH NAKA, WAGLE
ESTATE, THANE WEST,
MAHARASHTRA 400604.
r ....PETITIONER.
(BY SH. RANDEEP RAI, SENIOR
ADVOCATE, WITH NITIN
THAKUR AND MS. RUBEENA,
ADVOCATES)
AND
1. TIGAKSHA METALLICS
PRIVATE LIMITED, PLOT
NO.16, RAMNAGAR
INDUSTRIAL ESTATE,
GAGRET, DISTRICT UNA,
THROUGH MR. SUBHASH
CHAUDHURI, DIRECTOR OF
TIGAKSHA METALLICS
PRIVATE LIMITED.
2. SUBHASH DATTA
CHAUDHURI, AN INDIVIDUAL,
RESIDING AT FLAT NO.201,
MORNING STAR, SHIRLEY
RAJAN ROAD, NEAR RIZVI
COLLEGE, BANDRA WEST,
MUMBAI 400050.
...RESPONDENTS
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2
3. UDAY DESAI, DIRECTOR,
SUPERMAX PERSONAL CARE
PRIVATE LIMITED, LBS ROAD,
TEEN HAATH NAKA, WAGLE
ESTATE, THANE WEST,
.
MAHARASHTRA 400604.
4. ANINDO MUKHERJI,
GROUP CEO, SUPERMAX
PERSONAL CARE PRIVATE
LIMITED, LBS ROAD, TEEN
HAATH NAKA, WAGLE
ESTATE, THANE WEST,
MAHARASHTRA 400604.
5. KETAN DESAI, GROUP
CFO, SUPERMAX PERSONAL
CARE PRIVATE LIMITED, LBS
ROAD, TEEN HAATH NAKA,
WAGLE ESTATE, THANE WEST,
MAHARASHTRA 400604.
6. UPENDRA GUPTA, CFO,
SUPERMAX PERSONAL CARE
PRIVATE LIMITED, LBS ROAD,
TEEN HAATH NAKA, WAGLE
ESTATE, THANE WEST,
MAHARASHTRA 400604.
7. SANJAY JAGTAP, LEGAL
HEAD, SUPERMAX PERSONAL
CARE PRIVATE LIMITED, LBS
ROAD, TEEN HAATH NAKA,
WAGLE ESTATE, THANE WEST,
MAHARASHTRA 400604.
8. RANVEER CHANDEL,
FORMER COMPANY
SECRETARY, TIGAKSHA
METALLICS PRIVATE
LIMITED, RESIDENT OF
ADARSH NAGAR, TEHSIL AMB,
DISTRICT UNA, ALSO
PERMANENT RESIDENT OF
VPO MAJOHAN, P.O. BHAGER,
TEHSIL GHUMARWIN,
DISTRICT BILASPUR, HP.
....PROFORMA RESPONDENTS
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3
(BY MR. VIPUL DHARMANI,
MOHIT JAITAK, NIPUN,
THAKUR AND MS. AKANKSHA
.
SHARMA, ADVOCATES FOR
RESPONDENTS NO.1 AND 2)
CMPMO No. 236 of 2021
Between:-
RANVEER CHANDEL, FORMER
COMPANY SECRETARY,
TIGAKSHA METALLICS
PRIVATE LIMITED, RESIDENT
OF ADARSH NAGAR, TEHSIL
AMB, DISTRICT UNA, ALSO
PERMANENT RESIDENT OF
VPO MAJOHAN, P.O. BHAGER,
TEHSIL
r GHUMARWIN,
DISTRICT BILASPUR, HP.
....PETITIONER.
(BY SH. RANDEEP RAI, SENIOR
ADVOCATE, WITH NITIN
THAKUR AND MS. RUBEENA,
ADVOCATES)
AND
1. TIGAKSHA METALLICS
PRIVATE LIMITED, PLOT
NO.16, RAMNAGAR
INDUSTRIAL ESTATE,
GAGRET, DISTRICT UNA,
THROUGH MR. SUBHASH
CHAUDHURI, DIRECTOR OF
TIGAKSHA METALLICS
PRIVATE LIMITED.
2. SUBHASH DATTA
CHAUDHURI, AN INDIVIDUAL,
RESIDING AT FLAT NO.201,
MORNING STAR, SHIRLEY
RAJAN ROAD, NEAR RIZVI
COLLEGE, BANDRA WEST,
MUMBAI 400050.
...RESPONDENTS
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4
3. KENNY ABRAHAM,
DIRECTOR, SUPERMAX
PERSONAL CARE PRIVATE
LIMITED, LBS ROAD, TEEN
.
HAATH NAKA, WAGLE
ESTATE, THANE WEST,
MAHARASHTRA 400604.
4. UDAY DESAI, DIRECTOR,
SUPERMAX PERSONAL CARE
PRIVATE LIMITED, LBS ROAD,
TEEN HAATH NAKA, WAGLE
ESTATE, THANE WEST,
MAHARASHTRA 400604.
5.
GROUP
ANINDO
PERSONAL
CEO,
CARE
r to
MUKHERJI,
SUPERMAX
PRIVATE
LIMITED, LBS ROAD, TEEN
HAATH NAKA, WAGLE
ESTATE, THANE WEST,
MAHARASHTRA 400604.
6. KETAN DESAI, GROUP
CFO, SUPERMAX PERSONAL
CARE PRIVATE LIMITED, LBS
ROAD, TEEN HAATH NAKA,
WAGLE ESTATE, THANE WEST,
MAHARASHTRA 400604.
7. UPENDRA GUPTA, CFO,
SUPERMAX PERSONAL CARE
PRIVATE LIMITED, LBS ROAD,
TEEN HAATH NAKA, WAGLE
ESTATE, THANE WEST,
MAHARASHTRA 400604.
8. SANJAY JAGTAP, LEGAL
HEAD, SUPERMAX PERSONAL
CARE PRIVATE LIMITED, LBS
ROAD, TEEN HAATH NAKA,
WAGLE ESTATE, THANE WEST,
MAHARASHTRA 400604.
....PROFORMA RESPONDENTS
(BY MR. VIPUL DHARMANI,
MOHIT JAITAK, NIPUN,
THAKUR AND MS. AKANKSHA
SHARMA, ADVOCATES FOR
RESPONDENTS NO.1 AND 2)
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5
.
Whether approved for reporting?1 Yes.
These petitions coming on for orders this day, the Court
passed the following:
JUDGMENT
By way of these two petitions filed under Article 227 of the Constitution of India, the petitioners have prayed for the following reliefs:-
"a.
r This Hon'ble Court be pleased to issue a writ of certiorari or any other writ, order or direction in the nature of certiorari or any other appropriate writ, order or direction under Article 227 of the Constitution of India, calling for the papers and proceedings relating to the Suit No.200 of 2021, filed by respondent No.2 on behalf of respondent No.1 before the Court of Senior Civil Judge, Amb, including the Summons dated August 18, 2021 issued by the Court of Senior Civil Judge, Amb and after going through the same to examine the legality and validity of the Summons dated August 18, 2021 and further quash, set-aside the same.
b. Pending the hearing and final disposal of the present petition, this Hon'ble Court be pleased to stay the effect and operation of the Summons issued in the suit by the Court of Senior Civil Judge, Amb and any further proceedings in Suit 1 ::: Downloaded on - 09/03/2022 20:11:37 :::CIS 6 No.200 of 2021 before the Court of Senior Civil Judge, Amb."
2. As similar facts and same moot issues are involved in .
both these petitions and further as common arguments were addressed by the contesting parties in the said petitions, the petitions, therefore, are being decided by a common judgment.
3. The petitioner in CMPMO No. 235 of 2021 is stated to be the Chief Executive Officer of Super-Max Group of Companies and according to him his role includes overseeing, managing and handling the commercial operations and management of the two Super-Max Group Companies in India i.e. respondent No.1 i.e. Tigaksha Metallics and SPCPL. Petitioner in CMPMO No. 236 of 2021 is stated to be the former Company Secretary of respondent No.1, who was working as such from 14.12.2010 to 08.02.2018 and is presently stated to be working with Super-Max Group, Personal Care Pvt. Ltd., as Manager Compliance and Legal.
4. The case of the petitioners is that from the year 2011 till February, 2018, respondent No.1 was involved in manufacturing, finishing and packaging safety razor blades for SPCPL on work job basis. In February, 2018, respondent No.2 alongwith other individuals, acting at the behest of Sh. Rakesh Malhotra, a promoter of Super-Max Group, tried to unlawfully and wrongfully remove the then Director of respondent No.1 and gain unlawful entry into the facilities of respondent No.1 in Himachal Pradesh. He forcibly took over control over these facilities. On ::: Downloaded on - 09/03/2022 20:11:37 :::CIS 7 12.02.2018, respondent No.2 illegally acting on behalf of respondent No.1, terminated the job work agreement between SPCPL and respondent No.1. SPCPL initiated proceedings under .
Section 9 of the Arbitration and Conciliation Act, 1996, hereinafter referred to as 1996 Act, in the High Court of Bombay seeking interim reliefs. Vide orders dated 16.02.2018, 21.02.2018, 03.03.2018, 27.03.2018 and 16.05.2018, the Bombay High Court directed the Court receiver to visit the facilities of respondent No.1 and after carrying out inspection, seal all the machines belonging to SPCPL. The Court receiver sealed all machines of SPCPL lying at the facilities of respondent No.1 in Himachal Pradesh by 24.05.2018. Respondent No.2 claims to be a Director of respondent No.1, on the basis of nomination made by Super-Max Mauritius (SMM), one of the two share holders of respondent No.1, in terms of letter dated 07.02.2018, which method for appointment of a Director is not recognized under Indian law.
Knowing fully well that this appointment was not legal under Indian Law, SMM yet sought to convene an Extra Ordinary General Meeting of respondent No.1 by issuing notice dated 08.02.2018. This was to ratify the purported appointment of respondent No.2 as a Director of respondent No.1. This Court vide order dated 21.02.2018, passed in Arbitration Case No. 8 of 2018, restrained the respondents from holding the Extra Ordinary General Meeting. This petition, which was preferred under Section 9 of the Arbitration and Conciliation Act was disposed of by this ::: Downloaded on - 09/03/2022 20:11:37 :::CIS 8 Court vide order dated 10.01.2020, permitting Rakesh Malhotra, SMM, respondent No.1 & 2 and others, to proceed with the holding of the EOGM. An appeal was filed against order dated .
10.01.2020 and the Hon'ble Division Bench of this Court vide order dated 31.01.2020, restrained respondent No.1 from holding the EOGM. This appeal is still pending.
5. Further, according to the petitioners during the pendency of the above mentioned matters before this Court, ACGPL initiated Arbitration proceedings against Rakesh Malhotra and respondent No.1 amongst others, which were conducted under the London Court of International Arbitration Rules and a partial final award dated 12.02.2020, was passed in terms whereof takeover of respondent No.1 by Rakesh Malhotra and his agent including respondent No.2 was held to be wrongful. It was further held therein that the management of respondent No.1 must be taken over by the petitioners and one Mr. Anindo Mukherji i.e. the Group CEO of Super-Max Group. After the passing of the said partial award, ACGPL filed a petition under Section 9 of the 1996 Act, in the High Court of Bombay seeking interim reliefs pending the enforcement of the partial final award and Bombay High Court vide order dated 05.03.2020, inter-alia, directed the Court receiver to visit the facilities of respondent No.1 in Himachal Pradesh and seal the machines of SPCPL after inspection and submit a report.
::: Downloaded on - 09/03/2022 20:11:37 :::CIS 96. According to the petitioners, around 16th and 17th July, 2021, they received several complaints from the serving and former employees of respondent No.1 with regard to the acts of .
one Sh. Chanchal Sharma, who was the plant head of respondent No.1. Mr. Chanchal Sharma was one of the persons who was purported to be appointed as Director of the applicant through EOGM, which was sought to be convened by SMM, which act, as per the petitioners, was in complete violation and breach of the orders passed by the Bombay High Court. The complaints so received by them corroborated AGGPL's apprehension of the machines being cannibalized and damaged. In view of the said written complaints, ACGPL filed an application before Bombay High Court in Commercial Arbitration Petition L.No.306 of 2020 and vide order dated 21.08.2021, Bombay High Court directed the Court receiver to visit the facilities of the respondent No.1 along with the representatives of ACGPL and to inspect the machines of SPCPL which were sealed in the year 2018 and prepare a report.
The petitioners visited the facility of Gagret between 18.08.2021 to 20.08.2021. While in Gagret, petitioners were served with copy of Summons dated 18.08.2021 in a civil suit filed by respondent No.2 on behalf of respondent No.1 which suit was filed on 09.08.2021 by respondent No.2 on behalf of respondent No.1 with mala-fide intent of harassing the petitioners. The intention behind filing the suit was to restrain the petitioners from communicating with the current and former employees of respondent No.1 so that ::: Downloaded on - 09/03/2022 20:11:37 :::CIS 10 the misdeeds of Mr. Chanchal Sharma were not brought to the notice of the petitioners. A copy of the Civil Suit is appended with the petitions as Annexure-P1 and copy of the Summons is .
appended with the petitions as Annexure-P16. On 20.09.2021, the petitioners filed a miscellaneous application under Order 7 Rule 11 of the Civil Procedure Code. Thereafter, the petitioners filed the present petitions under Article 227 of the Constitution of India, praying for the reliefs already enumerated hereinabove on the "13.
r to grounds which stand mentioned in the petitions. These grounds are quoted verbatim herein below:-
Being aggrieved by the arbitrary and wrongful issuance of the Summons dated August 18,2021 in the Suit, the Petitioner is constrained to approach this Hon'ble Court on the following grounds, which are in the alternative and without prejudice to one another:
A. The Amb Court erred in issuing the Summons to the Petitioner as the same was issued in the Suit that has been wrongfully filed by Respondent No. 2 without any authority.
B. The issuing of the Summons by the Amb Court was erroneous as the Amb Court failed to note that the Suit is not maintainable as the same has been filed by Respondent No. 2 without any authority on behalf of Respondent No. 1.
C. The act of the Summons being issued by the Amb Court is one of a court having acted without jurisdiction, as the Suit is not maintainable and has been filed without ::: Downloaded on - 09/03/2022 20:11:37 :::CIS 11 any authority. The want of jurisdiction arises from the absence of a validly and legally filed proceeding, i.e. the Suit, by .
Respondent No. 1.
D. The Suit has no merit whatsoever and has been filed by Respondent No 2 on behalf of Respondent No.1 with malafide intentions of harassing the Petitioner.
E. The Suit has been filed on behalf of Respondent No. 1 by Respondent No. 2 who has no authority to represent Respondent No. 1. Respondent No. 2 is neither a legally appointed director of Respondent No. 1 nor r an employee or authorized representative of Respondent No. 1.
F. In the judgment passed in Rengali Hydro Electric Project v. Giridhari Sahu, (2019) 10 SCC 695, the Hon'ble Supreme Court reiterated what an error apparent on the face of the record would constitute. The Hon'ble Supreme Court held " A finding of fact which is not supported by any evidence would be perverse and in face would constitute an error of law enabling the writ court to interfere. It is also to be noticed that if the overwhelming weight of the evidence does not support the finding, it would render the decision amenable to certiorari jurisdiction." Therefore, the issuance of the Summons in the Suit which has been filed by Respondent No. 2 with no evidence to support the allegations therein and the basis of his authority to file the Suit on behalf of Respondent No.1, falls within the ::: Downloaded on - 09/03/2022 20:11:37 :::CIS 12 scope of the certiorari jurisdiction of this Hon'ble Court.
G. The Suit is contrary to the principles of .
natural justice and not supported by reasons. The Suit is based on conjectures and surmises apart from being completely false, baseless and malafide in nature.
There is no cause of action that has been made out by the Respondents. To permit the issuance of the Summons to the Petitioner in the suit, which is devoid of merit, is a travesty of justice.
H. Ever since Respondent No. 2 along with r others look over wrongful control of Respondent No. 1 in February, 2018, no steps were taken or proceedings filed by the Respondents seeking any relief restraining the Petitioner from communicating with the employees of Respondent No. 1. The Suit has therefore, been filed now to prevent the whistle-blowers from communicating with the Petitioner and with a view to conceal their wrongful acts within the facilities of Respondent No. 1.
I. Respondent No.1 has completely and miserably failed to make out a case in the Suit that the petitioner has attempted to (i) interfere with the day to day affairs of Respondent No. 1's factory; or (ii) enter the factory/premises except in due course of law; or (iii) instigate Respondent No.1's employees which may lead to a breach of peace; or (iv) obstruct ingress/egress of employees/goods, as alleged or at all.::: Downloaded on - 09/03/2022 20:11:37 :::CIS 13
J. By the Suit, Respondent No.2 is effectively attempting to prevent any whistle-blower from Respondent No.1 to bring to the .
attention of the Hon'ble High Court of Bombay any illegal action that Respondent No.2 and others in wrongful control of Respondent No.1 have been doing within the facilities of Respondent No.1.
K. Respondent No. 2 is not a Director of Respondent No.1. The EoGM which was sought to be convened to ratify the appointment of inter alia Respondent No.2 as a Director of Respondent No.1 was never r convened. The Respondents, Rakesh Malhotra, SMM and others have been restrained from holding the said EoGM by an order passed by this Hon'ble Court, which continues to be in effect till date. L. Respondent No.2 cannot be appointed as a Director of Respondent No.1 as Respondent No. 2 is disqualified under Section 164(2) of the Companies Act, 2013 from being appointed as a director in any company for five years from October, 2016. The said disqualification continues and therefore, Respondent No. 2 is barred under law from acting as the purported director of Respondent No.1. Respondent No.2 has, with malafide intentions, not disclosed the above facts before the Amb Court. M. Respondent No.1 presently does not have a board of directors. All the rightfully appointed board of directors of Respondent No. 1 have resigned as on September ::: Downloaded on - 09/03/2022 20:11:37 :::CIS 14 27,2019 and as such, Respondent No. 2 cannot be allowed to file/continue any proceeding on behalf of Respondent No.1.
.
Permitting the issuance of the Summons in the Suit filed by Respondent No.2 on behalf of Respondent No.1, amounts to an abuse of the process and will cause grave harm and prejudice to the Petitioner.
N. Respondent No. 2 has a past record of filing false, frivolous, malafide and vexatious proceedings against, inter alia the Petitioner. Respondent No.2 is misusing his rights as a litigant and malafide intentions r of harassing, inter alia, the Petitioner. The whole action of issuing the Summons in the Suit which has been field with malafide intentions must be set aside and quashed, to prevent further misuse and abuse of the process by Respondent No.2.
O. The Suit is completely false, baseless and constitutes an abuse of the process. Filing of the Suit is yet another misguided and malafide attempt by Respondent No. 2 to harass and intimidate, inter alia, the Petitioner.
P. If the Summons is not set aside and quashed by this Hon'ble Court, it will amount to grave injustice and harm to the petitioner, who is being made the subject of frivolous and vexatious proceedings repeatedly initiated by Respondent No.2 solely for the purpose of harassment and intimidation.::: Downloaded on - 09/03/2022 20:11:37 :::CIS 15
Q. This Hon'ble Court ought to set aside and quash the Summons as precipitating the Suit any further on behalf of Respondent .
No.1, would result in the Petitioner suffering irreparable loss, harm, damage, prejudice and injury."
7. Learned senior counsel appearing for the petitioners has argued that the issuance of Summons by the learned Trial Court to the petitioners is not sustainable in the eyes of law as the learned Trial Court while issuing the Summons has erred in not appreciating that the suit was not maintainable and the filing of the same was nothing but an abuse of the process of law and further the plaintiffs had not approached the Court with clean hands as pendency of the other proceedings between the parties were conveniently concealed by the plaintiffs in the suit. Learned Senior Counsel drew the attention of the Court to Annexure P1 which is a copy of the plaint filed before the learned Trial Court.
He submitted that the suit was filed by the company through one Mr. Subhash Chaudhuri in his capacity as Director of the company, whereas the averments made in para 3 of the plaint were to the effect that one Mr. Chanchal Sharma is the company head of the plaintiff who holds additional post of Director since 07.02.2018 and directly reports to the Board of Directors of the plaintiff company and is responsible for the management of the day to day affairs of the plaintiff company. He also drew the attention of the Court to the affidavit which has been filed in ::: Downloaded on - 09/03/2022 20:11:37 :::CIS 16 support of the plaint by Subhash Chaudhuri and argued that the plaint is stated to be sworn on his knowledge and it is not mentioned therein that the contents of the plaint are based on .
information gathered from the records of the company which rendered the plaint to be bad in law. Learned Senior Counsel also argued that Mr. Subhash Chaudhuri was disqualified by the Ministry of Corporate Affairs from 01.11.2016 upto 31.02.2021 from holding the office of Director of any company and in lieu of this disqualification, he could not be a Director of any company, thus the plaint which was filed through him was bad in law, which aspect of the matter was not gone into by the learned Trial Court while issuing the Summons. Thus, prayer has been made by the learned senior counsel that as the issuance of Summons in the suit by the learned Trial Court is bad in law, therefore, the petition be allowed and the Summons issued be quashed and set-aside.
Learned Senior Counsel heavily relied upon the judgment of Hon'ble Supreme Court in K.K. Modi Vs. K.N. Modi, AIR 1998 SC 1297 and M/s Nibro Limited Versus National Insurance Co. Ltd., ILR (1991) II Delhi 173, passed by Hon'ble High Court of Delhi.
8. Opposing the petitions, learned counsel for the contesting respondent has argued that the filing of the present petitions under Article 227 of the Constitution of India is an abuse of the process of law. He has argued that the present petitions are not otherwise also maintainable in view of the reliefs which have been prayed therein. Learned counsel submitted that an ::: Downloaded on - 09/03/2022 20:11:37 :::CIS 17 application under Order 7 Rule 11 CPC stood filed by the petitioners before the learned Trial Court and without awaiting the adjudication of the same, present petitions stood preferred. He .
also submitted that the issues which have been raised with regard to the maintainability of the Civil Suit in these petitions have to be raised by the petitioners before the learned Trial Court and it is for the learned Trial Court to take a decision with regard to the maintainability of the suit and the same cannot be decided by this Court by invoking the jurisdiction of this Court under Article 227 of the Constitution of India. Learned counsel also argued that whether or not the Civil Suit has been properly drafted and filed and further whether or not the authorization of the Director concerned to file the same is as per law are issues which have to be decided by the learned Trial Court. The objection qua Suit having been instituted on behalf of the company by a person disqualified from being director of any company for a particular time period is also to be decided by the learned Trial Court.
According to him, all the so called discrepancies which have been pointed out by the learned Senior Counsel for the petitioners in the suit, even if assumed to be correct, were curable defects and there was no occasion for this Court to interfere with issuance of Summons as this was not the stage for this Court to invoke its jurisdiction under Article 227 of the Constitution of India.
Accordingly, he prayed for dismissal of the present petitions.
::: Downloaded on - 09/03/2022 20:11:37 :::CIS 189. During the course of his arguments, learned counsel relied upon the following judgments:-
(a) Shalini Shyam Shetty & another Versus .
Rajendra Shankar Path (2010) 8 SCC 329.
(b) Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and others Versus Tuticorin Education Society, (2019) 9 SCC 538.
(c) Bhanu Pratap Mehra Versus M/s Brij Leasing (P) Ltd. and Others, [(2011) (4) ADJ 125]
10. In rebuttal, learned Senior Counsel appearing for the petitioners while reiterating the submissions made in support of the petitions has argued that filing of the application under Order 7 Rule 11 CPC is no hindrance in the way of the petitioners from approaching this Court by way of these proceedings for the reason that the issues which have been raised by the petitioners herein cannot be raised in the application filed under Order 7 Rule 11.
Learned Senior Counsel in rebuttal has relied upon the judgment of Hon'ble Supreme Court in P.V. Guru Raj Reddy Versus P. Neeradha Reddy and Others, (2015) 8 SCC 331.
11. I have heard learned counsel for the parties and have also gone through the petitions as well as documents appended therewith.
12. Before proceeding further, I will at this stage refer the various judgment relied upon by the learned counsel for the parties.
::: Downloaded on - 09/03/2022 20:11:37 :::CIS 1913. In K.K. Modi Versus K.N. Modi and Others, AIR 1998 SCC 1297, Hon'ble Supreme Court of India has been pleased to hold as under:-
.
"42. Under Order 6 Rule 16, the Court may, at any state of he proceeding, order to be struck out, inter alia, any matter in any pleading which is otherwise an abuse of the process of the Court. Mulla in his treatise on the Code of Civil Procedure. (15th Edition, Volume II, page 1179 note 7) has stated that power under clause
(c) of Order 6 Rule 16 of the Code is confined to cases where the abuse of he process of the Court is manifest from the pleadings; and that this power is unlike the power under section 151 whereunder Courts have inherent power to strike out pleadings or to stay or dismiss proceedings which are an abuse of their process. In the present case the High Court has held the suit to be an abuse of he process of Court on the basis of what is stated in the plaint.
43. The Supreme Court Practice 1995 published by Sweet & Maxwell in paragraph 18/19/33 (page 344) explains the phrase "abuse of the process of the court"
thus: "This term connotes that the process of the court must be used bona fide and properly and must not be abused. The court will prevent improper use of its machinery and will in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation........ The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances. And for this purpose considerations of public policy and the interests of justice may be very material."
::: Downloaded on - 09/03/2022 20:11:37 :::CIS 2014. In Shalini Shyam Shetty & another Versus Rajendra Shankar Path, (2010) 8 SCC 329, Hon'ble Supreme Court of India while discussing the scope of Article 227 of the .
Constitution of India has been pleased to hold as under:-
"49. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated:
(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different.
(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above.
(c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.
(d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down ::: Downloaded on - 09/03/2022 20:11:37 :::CIS 21 by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent .
Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, `within the bounds of their authority'.
(f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.
(i) High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar vs. Union of India & ::: Downloaded on - 09/03/2022 20:11:37 :::CIS 22 others, reported in (1997) 3 SCC 261 and therefore abridgement by a Constitutional amendment is also very doubtful.
.
(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.
(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.
(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.
(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court.
::: Downloaded on - 09/03/2022 20:11:37 :::CIS 23(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion .
of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality."
15. In P.V. Guru Raj Reddy Versus P. Neeradha Reddy and Others, (2015) 8 SCC 331, Honble Supreme Court of India with regard to exercise of powers under Order 7, Rule 11 of the Code of Civil Procedure has been pleased to hold that at the stage of exercise of power under Order 7, Rule 11 of the Code of Civil Procedure, the stand of the defendants in the written statement or in the application for rejection of the plaint is wholly immaterial. It is only if the averments in the plaint ex facie do not disclose a cause of action or on a reading thereof the suit appears to be barred under any law the plaint can be rejected. In all other situations, the claim will have to be adjudicated in the course of the trial.
16. In Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and Others Versus Tuticorin Educational Society, (2019) 9 SCC 538, Hon'ble Supreme Court of India has held that whereever the proceedings are under the Code of Civil ::: Downloaded on - 09/03/2022 20:11:37 :::CIS 24 Procedure and the forum is the the Civil Court, the availability of a remedy under the Civil Procedure Code, will deter the High Court, not merely as a measure of self-imposed restriction, but as a .
matter of discipline and prudence, from exercising its power of superintendence under the Constitution.
17. In M/s Nibro Limited Versus National Insurance Co. Ltd., ILR (1991) II Delhi 173, Hon'ble Delhi High Court has held that ordinarily the Court will not unsuit a person on account of technicalities. However, the question of authority to institute a suit on behalf of the company is not a technical matter.
18. In Bhanu Pratap Mehra Versus M/s Brij Leasing (P) Ltd. and Others, [2011 (4) ADJ 125], Hon'ble Allahabad High Court, inter alia, held that there is no provision under the Code of Civil Procedure, which provides that Director cannot institute a suit unless he is authorised by the Board of Directors.
19. At the very outset, this Court may observe that this Court in exercise of power so conferred under Article 227 of the Constitution of India cannot issue a writ of certiorari or any other writ to quash and set-aside Summons issued by a Civil Court.
Article 226 of the Constitution of India confers upon the High Court powers to issue certain writs. Article 227 of the Constitution of India, confers upon the High Court the power of superintendence over all courts in relation to which it exercises jurisdiction.
::: Downloaded on - 09/03/2022 20:11:37 :::CIS 2520. In the present case, the petitioners have approached this Court against the issuance of Summons issued by the learned Trial Court in a Civil Suit filed against them by the contesting .
respondent.
21. Here it is also relevant to refer to the Hon'ble three Judges bench Judgment of the Supreme Court of India in Radhey Shyam and another Vs. Chhabi Nath and others (2015) 5 SCC 423, in which the following reference was made for the consideration of the Hon'ble three Judge bench:-
"This matter has been placed before the Bench of three Judges in pursuance of an order dated April 15, 2009 passed by the bench of two Hon'ble Judges to consider the correctness of the law laid down by this Court in Surya Dev Rai Vs. Ram Chander Rai and others that an order of civil court was amenable to writ jurisdiction under Article 226 of the Constitution. The reference order, inter alia, reads:-
30. .........Therefore, this Court unfortunately is in disagreement with the view which has been expressed in Surya Dev Rai insofar as correction of or any interference with judicial orders of civil court by a writ of certiorari is concerned.
31. Under Article 227 of the Constitution, the High Court does not issue a writ of certiorari.
Article 227 of the Constitution vests the High Courts with a power of superintendence which is to be very sparingly exercised to keep tribunals and courts within the bounds of their authority. Under Article 227, orders of both civil and criminal courts can be examined only in very exceptional cases when manifest miscarriage of justice has been occasioned. Such power, ::: Downloaded on - 09/03/2022 20:11:37 :::CIS 26 however, is not to be exercised to correct a mistake of fact and of law.
32. The essential distinctions in the exercise of power between Articles 226 and 227 are well .
known and pointed out in Surya Dev Rai and with that we have no disagreement. But we are unable to agree with the legal proposition laid down in Surya Dev Rai that judicial orders passed by a civil court can be examined and then corrected/reversed by the writ court under Article 227 in exercise of its power under a writ of certiorari. We are of the view that the aforesaid proposition laid down in Surya Dev Rai, is contrary to the ratio in Mirajkar and the ratio in Mirajkar has not been overruled in Rupa Ashok Hurra.
33. In view of our difference of opinion with the views expressed in Surya Dev Rai, matter may be placed before His Lordship the Hon'ble the Chief Justice of India for constituting a larger Bench, to consider the correctness or otherwise of the law laid down in Surya Dev Rai on the question discussed above."
22. Hon'ble Supreme Court after referring to its earlier judgments in T.C. Basppa Vs. T. Nagppa, AIR 1954 SC 440, Ujjam Bai Vs. State of UP, AIR 1962 SC 1621, Naresh Shridhar Nirchakar Vs. State of Maharashtra, AIR 1967 SC 1, Udham Chaudhary Vs. State of Bihar, AIR 1955 SC 191, Chaudahry Transport Cooperative Society Ltd. Vs. RTA, AIR 1960 SC 801, Prem Chand Garg Vs. Excise Commissioner, AIR 1963 SC 996, Rupa Ashok Bhura Vs. Ashok Khurarat, 2002 Vol.4 SCC 388 reiterated that it was clearly laid down that challenge to judicial orders would lie by way of appeal or revision or under Article 227 ::: Downloaded on - 09/03/2022 20:11:37 :::CIS 27 and not by way of writ petition under Article 226 and 32 of the Constitution of India. The Hon'ble Supreme Court in para 27 of the judgment held that judicial orders of Civil Courts are not .
amenable to writ of certiorari under Article 226 of the Constitution of India and even a writ of mandamus does not lye. Hon'ble Supreme Court held that scope of Article 227 was different from Article 226. The reference was answered by the Hon'ble Supreme Court as under:-
"29.
follows :
r to Accordingly, we answer the question referred as 29.1. Judicial orders of civil court are not amenable to writ jurisdiction under Article 226 of the Constitution; 29.2. Jurisdiction under Article 227 is distinct from jurisdiction from jurisdiction under Article 226.
29.3. Contrary view in Surya Dev Rai is overruled."
30. The matters may now be listed before the appropriate Bench for further orders."
23. In the light of the law lay down by the Hon'ble Supreme Court, in Radhey Shyam Vs. Chhabi Nath (supra), this Court has no hesitation to hold that the prayer made by the petitioners for issuance of writ of certiorari for quashing the Summons issued by the Court of learned Civil Judge, Senior Division, Amb, District Una, HP in Civil Suit No.200 of 2021 is not maintainable in law. In fact, this Court would go a step ahead and observe that the reliefs as mentioned in the relief clause of the petition are completely misconceived for the reason that in ::: Downloaded on - 09/03/2022 20:11:37 :::CIS 28 exercise of its powers of supervision under Article 227 of the Constitution of India, the High Court does not issues any writs.
24. Be that as it may, now this Court will answer the .
question as to whether in the peculiar facts of this case, otherwise also, in exercise of its power of superintendence, the Summons issued to the petitioners by the learned Trial Court are liable to be set-aside or not.
25. The details of some of the litigations intra the parties as they stand spelt out in the petitions have already been referred by me hereinabove. The contention of the petitioners is that in view of the litigations which were and are between the parties, pending adjudication before this Court as also before the High Court of Bombay the contesting respondents have no locus to file and maintain the Civil Suit and in this background the issuance of Summons to the petitioners by the learned Trial Court is an abuse of the process of law. The discrepancies in the plaint which exist as per the petitioners have also been spelt out by me in the above part of the judgment. The stage at which the petitioners have approached this Court is where only Summons have been issued to them in the Civil Suit which has been filed against them the Court below.
26. The Code of Civil Procedure lays down the procedure for the adjudication of a suit. The filing of the plaint puts into motion the process and after the Summons are issued and served upon the defendants, it is for them by way of defence to raise all ::: Downloaded on - 09/03/2022 20:11:37 :::CIS 29 possible pleas before the learned Court opposing the suit including its maintainability.
27. In this case, the primary objections of the petitioners .
with regard to the issuance of Summons by the learned Trial Court, as is borne out from the grounds taken by them in the petitions are, that the suit has been filed with a mala fide intention to harass the petitioners; the suit has been filed on behalf of respondent No.1 by respondent No.2 who has no authority to represent respondent No.1; the issuance of Summons in the suit which has been filed by respondent No.2 with no evidence to support the allegations therein falls within the certiorari jurisdiction of this Court; the suit is contrary to the principal of natural justice and not supported by reasons;
respondent No.1 has miserably failed to make out a case in the suit; respondent No.2 is effectively attempting to prevent any whistle-blowers from respondent No.1 to bring to the attention of the High Court of Bombay the illegal acts of respondent No.2; said respondent is not a Director of respondent No.1;, respondent No.2 has a past record of filing the false, frivolous, mala fide and vexatious proceedings against the petitioners; filing of the suit is misguided etc.
28. Now one fails to understand that as to how and why this Court should set-aside the issuance of Summons by a Trial Court purportedly on the ground that the plaintiffs have not approached the Trial Court with clean hands or the suit is bad ::: Downloaded on - 09/03/2022 20:11:37 :::CIS 30 and not maintainable. This Court is of the considered view that as Summons stand served upon the petitioners, then in exercise of the right which so stands conferred upon them under Order VIII .
of the Civil Procedure Code, they can file written statements before the learned Trial Court and bring all these facts in the notice of the learned Trial Court and thereafter it is for the learned Trial Court to take a call based upon the pleadings of the parties etc., as to whether there is any merit in the suit or not. However, on the grounds which have been taken in these petitions, the Summons which have been issued by the learned Trial Court cannot be set-aside.
29. This Court is of the considered view that if the High Courts start exercising their power of supervision under Article 227 of the Constitution of India in quashing even the issuance of Summons then this will set in a dangerous trend wherein the defendant(s) on receipt of Summons will rush to the High Courts for setting-aside of the Summons by raising pleas which at the first instance they otherwise have to raise in the written statement or by invoking any other provision of the Civil Procedure Code before the learned Trial Court to satisfy the said Court that the filing of the suit is a mischievous act. Here it is not the case of the petitioners that they have brought the infirmity in the suit by way of written statement etc., before the learned Trial Court yet the learned Trial Court is not adjudicating either on some applications which have been filed by them praying for dismissal of the suit or ::: Downloaded on - 09/03/2022 20:11:37 :::CIS 31 the learned Court below is not considering the prayer of the petitioners with regard to the maintainability of the suit. At the first instance, whether a suit is maintainable or not has to be .
decided by the learned Trial Court and this obviously can be done by the Trial Court only if the defendants in black and white bring into the notice of the learned Trial Court as to why the suit is not maintainable and what are the infirmities in it. In the absence of the same, the petitioners cannot be permitted to approach this Court under Article 227 of the Constitution of India after the issuance of Summons only to them seeking quashing thereof. The power of superintendence can be exercised by the Court only if the learned Courts below having been called upon to do something either do not perform their duties or orders passed by them are perverse which call for interference by the High Court in exercise of its jurisdiction under Article 227 of the Constitution of India.
30. In fact, it is settled law that ordinarily in exercise of power so conferred under Article 227 of the Constitution of India orders passed by the learned Court below are not to be interfered with if the view so taken by the learned Court below is a possible view on the basis of the material before it and it is only where there is perversity writ large on the face of the orders or in the act of the learned Trial Court, that this Court interferes under Article
227. ::: Downloaded on - 09/03/2022 20:11:37 :::CIS 32
31. In the present case after the filing of the Civil Suit the act of the learned Trial Court of issuing Summons to the petitioners herein is not a perverse act. Infirmities if any in the .
suit, which exist as per the present petitioners, cannot render the issuance of Summons by the learned Trial Court to be bad in law.
32. It has to be appreciated that the learned Trial Court is not a contesting party in the lis. It indeed is an adjudicating Court. Before the Court all parties are equal. Matters are to be decided by the Court on the basis of pleadings before it and not on the whims of the parties. In the present case, the petitioners want the Summons issued by the learned Trial Court to be quashed and set aside simply because in their view the Civil Suit is not maintainable and its filing is an abuse of the process of law. The reason as to why this Court has used the expression "in their view" is that the stage at which the petitioners have approached this Court for setting aside of the Summons is where they have not even filed written statements before the learned Trial Court apprising the Court of the defence of the petitioners which defence can always question the maintainability of the Civil Suit per-se.
Therefore, this Court is convinced that at this stage no case has been made out by the petitioners for setting aside of the Summons issued by learned Trial court by exercising jurisdiction so conferred upon it under Article 227 of the Constitution of India.
33. Accordingly, in view of what has been held hereinabove, these petitions being devoid of any merit are ::: Downloaded on - 09/03/2022 20:11:37 :::CIS 33 dismissed. No order as to costs. Pending miscellaneous applications, if any, stand disposed of. Interim orders stand vacated.
.
(Ajay Mohan Goel)
Judge
March 08, 2022
(vinod/chander)
r to
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