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2012 DIGILAW 214 (KER)

Crompton Greaves Limited v. Icon Integrated Industries Software Limited

2012-02-17

K.HARILAL, V.RAMKUMAR

body2012
ORDER 1. This is a petition for review of the order dated 31.1.2012 passed inI.A.No. 1930 of 2009. The review petitioners are the appellants in the above appeal. They were the defendants in the suit filed by the respondent herein before the Subordinate Judge's Court, N. Parur, for return of the advance amount of ` 2,55,25,000/- with interest thereon calculated at ` 31,59,505/- till date of suit. The total suit claim was 2,86,84,505 plus future interest @ 18% per annum till realisation. 2. As per the contract for sale, the appellants agreed to sell to the respondent plaintiff the KELW Division of Crompton Greaves Ltd. at Athani, Aluva for a total consideration of ` 5,22,50,000/-. As mentioned above, the suit was filed for return of the advance amount together with interest. 3. The appellants, inter alia contended that they sustained a loss of ` 2,94,19,258/- due to the breach allegedly committed by the plaintiff. 4. The Court below held that the appellants did not adduce any acceptable evidence to prove the alleged loss sustained by them. The Court further held that by virtue of Ext.B11 letter the plaintiff was bound to pay to the defendants monthly expenditure at the rate of ` 8,00,000/- per month from 31.10.2000 to 30.7.2011 which works out to ` 72,00,000/-. The contention of the appellants that they are entitled to forfeit the advance amount of ` 2,55,25,000/- received by them, was rejected by the Court below which accordingly decreed the suit in part for ` 1,83,25,000/-which was arrived at after deducting ` 72,00,000/- from the advance amount. The lower court disallowed interest on the advance amount. It is aggrieved by the above decree that the defendants have filed the above appeal. The plaintiff has filed a cross-objection also for the disallowed portion of the suit claim. 5. This Court granted a stay of execution of the decree on condition that the defendants/appellants will furnish bank guarantee for the decree amount. Accordingly, they furnished the bank guarantee which was being extended by the appellants as ordered by this Court. On account of the interim stay, the respondent/plaintiff was unable to execute the money decree. The respondent, thereupon, filed I.A. No. 1930/2009 on 17.6.2009 for permission to encash the bank guarantee on furnishing proper security. The appellants were successfully evading orders on the said petition. On account of the interim stay, the respondent/plaintiff was unable to execute the money decree. The respondent, thereupon, filed I.A. No. 1930/2009 on 17.6.2009 for permission to encash the bank guarantee on furnishing proper security. The appellants were successfully evading orders on the said petition. It is pertinent to note in this context that the appellants have not so far filed any objection or counter affidavit to I.A.No. 1930/2009. In the meanwhile, the Division Bench before which this appeal was then pending, presumably noting that the respondent/plaintiff was deprived of the fruits of the money decree for an unreasonably long period, passed an order on 20.5.2010 as follows:- "Though an order of stay is granted on condition that the appellants furnish bank guarantee and the bank guarantee initially furnished has expired, as of now we are inclined to take the view that the appellants ought to deposit the decree debt and the respondent be permitted to withdraw the same on furnishing bank guarantee. For consideration of this issue, post after two weeks. In the meanwhile, the bank guarantee that the appellants have now furnished will be kept in tact and treated in lieu of the bank guarantee furnished earlier, subject to what is stated above". 6. Due to the heavy pendency of appeals and the consequent pressure of work, this Court was not able to take up the appeal for final hearing. In fact, the appeals which are currently taken up for hearing by us are of the years 1994 and subsequent years. Accordingly, on 31.1.2012 I.A. No. 1930/2009 was taken up for hearing. After hearing both sides we allowed the respondent/plaintiff to encash the bank guarantee after furnishing proper security to the bank. It is thereafter that the appellants have filed this Review Petition inter alia alleging that the above order has been obtained in an improper manner and on fraudulent misrepresentation and no party should be permitted to play fraud on Court particularly in the absence of the senior counsel appearing for the appellants. The petition proceeds to state that when the matter was subsequently brought to the notice of this Court by the counsel representing the appellants it was observed that an application for review may be presented and accordingly this Review Petition is filed. 7. We heard Senior Adv. Sri. K. Ramakumar appearing for the review petitioners and Senior Advocate Sri. The petition proceeds to state that when the matter was subsequently brought to the notice of this Court by the counsel representing the appellants it was observed that an application for review may be presented and accordingly this Review Petition is filed. 7. We heard Senior Adv. Sri. K. Ramakumar appearing for the review petitioners and Senior Advocate Sri. S. Sreekumar appearing for the respondent. 8. It is rather unfortunate that such a Review Petition has been filed casting unfounded aspersions on a senior Advocate. When I.A. No. 1930/2009 came up for hearing before us on 31.1.2012, the review petitioners/appellants were represented by counsel who participated in the hearing. He never requested the matter to be passed over or adjourned. Apart from the fact that no counter-affidavit had been filed by the appellants to the above petition which was filed more than two years ago, the respondent/ plaintiff was permitted to encash the bank guarantee only after furnishing proper security. 9. After we had pronounced orders in open Court, the same was also signed in the usual course. Thereafter, a lady Advocate attached to the office of Senior Advocate Sri. K. Ramakumar, made an oral request before this Court to post the case "to be spoken to". She was told that it was not possible to accede to her request since this Court had already signed the order. The statement in the Review Petition that this court observed that a review may be presented, is absolutely false. No such observation was made by this Court. 10. There is absolutely no merit or bona fides in this Review Petition which is misconceived because I.A. No. 1930 of 2009 was allowed without any objection or opposition and subject to the condition that the plaintiff will encash the bank guarantee after furnishing security. But what is projected in the Review Petition is a false version of what transpired before this Court for which the petitioners deserve condemnation. Through this Review Petition the petitioners (their Sr. Advocate ?) have also achieved their sinister motive of maligning Senior Advocate Sri. S. Sreekumar appearing for the respondent/plaintiff. It is unfortunate, though not surprising, that a Senior Advocate has thought it fit to unabashedly justify the unfounded allegations made in the Review Petition against a member of his own fraternity. Even without any compunction or semblance of regret Sri. Advocate ?) have also achieved their sinister motive of maligning Senior Advocate Sri. S. Sreekumar appearing for the respondent/plaintiff. It is unfortunate, though not surprising, that a Senior Advocate has thought it fit to unabashedly justify the unfounded allegations made in the Review Petition against a member of his own fraternity. Even without any compunction or semblance of regret Sri. Ramakumar re-iterated before us the baseless and objectionable expressions mentioned in the Review Petition. Justice Madan B. Lokur of the Delhi High Court, while recommending to the Full Court that two erring Senior Advocates should be stripped off their designation as Senior Advocates, observed that a Senior Advocate is expected to conduct himself as a gentleman and role model for younger members of the Bar. We are afraid that the conduct of the Senior Advocate appearing for the review petitioners was not befitting the above standards. This petition is accordingly dismissed with costs. The petitioners shall pay a sum of ` 25,000/- (Rupees twenty five thousand only) as compensation to the Legal Benefit Fund, Bar Council of Kerala for making irresponsible and reckless allegations against a senior member of the Bar. The said amount shall be paid within two weeks from today failing which the Bar Council, Kerala can realise the amount in accordance with law.