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2013 DIGILAW 1808 (MAD)

Sical Logistics Limited v. Kyko Global Inc

2013-04-29

M.JAICHANDREN, M.M.SUNDRESH

body2013
Judgment :- M.M. Sundresh, J. 1. The appellant herein is the plaintiff in the suit. The appellant filed a suit for declaration and permanent injunction in C.S.No.495 of 2012. Pending suit, the appellant filed two applications in O.A.Nos.593 and 594 of 2012 in C.S.No.495 of 2012, seeking grant of injunction, restraining respondents-1, 2 and 5 herein/defendants from using the fabricated documents and thereafter, instituting or continuing any legal proceeding placing reliance upon them. The learned single judge dismissed the applications on the ground that Section 41 of the Specific Relief Act would act as a bar. Challenging the order of the learned single judge in dismissing both the applications filed by the appellant, the present appeals have been filed. 2. Based upon the guarantee documents, dated 02.08.2010, purported to be signed by defendants 10, 11 and 14 and executed by them in pursuant to the Board of Directors' Meeting of the plaintiff-company said to have convened on 15.07.2010, proceedings have been initiated by defendants 1, 2 and 5 at Ontario, Canada. According to the appellant, the documents relied upon by defendants 1, 2 and 5 before the Court at Ontario, Canada, are fabricated ones. There was no Board Meeting on the date mentioned and the signatures of the Directors have been forged. Similarly, the document of Guarantee was also forged. The persons, who have allegedly signed those documents, were not in India at the relevant point of time. They have also filed affidavits to that effect. 3. According to defendants 1, 2 and 5, the documents are genuine. The suit as filed itself is not maintainable and it has also become infructuous. The only course open to the appellant is to approach the jurisdictional Court at Ontario, Canada. There are no bona fides in the applications filed. 4. The learned single Judge dismissed the applications on the ground that Section 41 of the Specific Relief Act would operate as a bar. Consequentially, it was held that the appellant can contest the suit in the jurisdictional Court at Ontario, Canada. 5. Shri P.S.Raman, learned Senior Counsel appearing for the appellant in both the appeals, would contend that the documents filed would prima facie show that the documents based upon which an ex-parte decree was obtained at the Court in Ontario are forged and fabricated at the instance of defendants 1, 2 and 5. 5. Shri P.S.Raman, learned Senior Counsel appearing for the appellant in both the appeals, would contend that the documents filed would prima facie show that the documents based upon which an ex-parte decree was obtained at the Court in Ontario are forged and fabricated at the instance of defendants 1, 2 and 5. The reasons assigned by the learned single Judge, by wrongly applying Section 41 of the Specific Relief Act, cannot be sustained in the teeth of the judgment of the Honourable Apex Court rendered in OIL AND NATURAL GAS COMMISSION V. WESTERN COMPANY OF NORTH AMERICA (1987) 1 Supreme Court Cases 496. There is no material to show the alleged money transaction between the parties. The Court of Ontario, Canada, has proceeded to pass an ex-parte decree, notwithstanding the pendency of the applications seeking injunction and orders of injunction granted initially. Therefore, these appeals will have to be allowed by setting aside the judgment and decree passed by the learned single Judge. 6. Per contra, Shri Aravind P. Dator, learned Senior Counsel appearing for the respondents/defendants would contend that there are no bona fides in the applications filed. The appellants have not even protested the alleged fabrication at the appropriate time. Therefore, the objections made were out of after-thought. It is well open to the appellant to raise all its contentions before the jurisdictional Court at Ontario, Canada. The suit as filed is infructuous in view of the decree passed. Therefore, the appeals will have to be dismissed. 7. Even though the learned Senior Counsels appearing on behalf of both sides made submissions on merits, we do not wish to go into the same. This, we do so, as the leaned single Judge also did not go into the merits. We agree with the contention of the learned Senior Counsel appearing for the appellant that the learned single Judge has committed an error in having resort to Section 41 of the Specific Relief Act, which provision cannot be pressed into service to the case on hand. In this case, the respondents/defendants seek to rely upon the documents alleged to have been fabricated at the Court of Ontario, Canada. In this case, the respondents/defendants seek to rely upon the documents alleged to have been fabricated at the Court of Ontario, Canada. Therefore, as held by the Apex Court in OIL AND NATURAL GAS COMMISSION V. WESTERN COMPANY OF NORTH AMERICA (1987) 1 Supreme Court Cases 496 cited supra, Section 41 of the Specific Relief Act would not operate as a bar for deciding the applications filed by the appellant. Having regard to the above saidview, we set aside the judgment and decree of the learned single Judge giving liberty to the parties to raise all their contentions before the learned single Judge while dealing with the Original Application Nos.593 and 594 of 2012 in C.S.No.495 of 2012. Consequently, we request the learned single Judge to take up the applications filed by the appellant in O.A.Nos.593 and 594 of 2012 in C.S.No.495 of 2012 and decide them on merits and in accordance with law. We make it clear that we are not expressing anything on merits of the applications. We also request the learned single Judge to decide the applications as expeditiously as possible as the pleadings are complete. 8. Accordingly, these Original Side Appeals are allowed and consequently, the learned single Judge, dealing with the applications, is requested to take up the Original Application Nos.593 and 594 of 2012 in C.S.No.495 of 2012 filed by the appellant and decide them on merits and in accordance with law, as expeditiously as possible. No costs. Consequently, connected miscellaneous petitions are closed.