JUDGMENT :- (Prayer in A.No.977 of 2020: Judges summons filed under Order XIV Rule 8 of the Original Side Rules read with Clause 12 of the Letters Patent to revoke the leave against the 1st respondent / 1st defendant granted in A.No.1134 of 2004 dated 12.03.2004. A.No.1277 of 2020: Judges summons filed under Order XIV Rule 8 of the Original Side Rules read with Section 144 & 151 of CPC to pass on order of restitution of the properties morefully described in the schedule appended hereunder as well as compensation which could be assessed by a process of this Court. A.No.1278 of 2020: Judges summons filed under Order XIV Rule 8 of the Original Side Rules read with Order XXVI Rule 9 and Section 151 of CPC to appoint a Court Commission to make an inventory and assess the damages, if any caused to the properties morefully described in the schedule appended hereunder, with the help of a qualified Government approved Civil Engineer, and to file a report before this Court.) 1. The defendants 1 and 4 in the suit had filed the above applications for the following reliefs: (a) To revoke the leave granted against the 1st defendant granted in A.No.1134 of 2004 dated 12.03.2004. (b) The restitution of the schedule mentioned properties as well as compensation to be paid by the plaintiff (c) To appoint a Court Commission to make an inventory and assess the damages, if any, caused to schedule mentioned properties with the help of a qualified Government approved Civil Engineer and file a report before this Court. The parties are referred to in the same array as in the suit.” 2. The brief facts preceeding the filing of these applications are as follows: The plaintiff had filed a suit C.S.No.290 of 2004 on the file of this Court for recovery of a sum of Rs.3,94,72,726/- from the defendants 1 to 3 as guarantors of the 4th defendant company. The suit was filed after obtaining leave from this Court to sue defendants 1 to 3 who were residing outside the jurisdictions of this Court. 3. The plaintiff would submit that they had opened Letters of Credit for the supply of RBD Palmolein for use in the manufacture of edible oils by the 4th defendant. The suit was filed after obtaining leave from this Court to sue defendants 1 to 3 who were residing outside the jurisdictions of this Court. 3. The plaintiff would submit that they had opened Letters of Credit for the supply of RBD Palmolein for use in the manufacture of edible oils by the 4th defendant. The plaintiff had supplied 1098.7478 metric tonnes of Palmolein to the 4th defendant by purchasing the same under a Letters of Credit drawn in favour of one Sri Maruthi Enterprises. The plaintiff had raised an invoice for a sum of Rs.2,56,00,824/-. 4. Thereafter, a further quantity of 499.774 metric Tonnes of Palmolein was also supplied, for which the plaintiff had raised an invoice for Rs.1,15,13,807/-. In all the 4th defendant had to pay a sum of Rs.3,71,14,631/-. The defendants 1 to 3 had executed a personal guarantee in favour of the plaintiff undertaking to repay the amounts that are due and payable by the 4th defendant. Their properties were offered as collateral security by a mortgage by deposit on title deeds. 5. The 4th defendant had only made a payment of Rs.80,00,000/- on different dates and thereafter no amounts were received from them. The plaintiff had issued several reminders to the 4th defendant calling upon them to pay the balance due however no due was paid. 6. The plaintiff would submit that on account of this non-payment they had suffered a huge loss since they had opened Letters of Credit through Bank for the import of the RBD Palmolein. The plaintiff had therefore issued a notice to the defendants 1 to 4 and defendants 2 and 3 dated 14.11.2002 calling upon them to make the payment. Some of them had issued a reply denying the liability as well as the mortgage. 7. Thereafter, the plaintiff had issued another notice dated 09.12.2002, informing the defendants that the disputes could be settled through arbitration and also putting them on notice about the appointment of the arbitrator. 8. However, defendants 1 to 3 had sent a reply dated 03.01.2003 inter alia contending that there was no arbitration agreement binding them and that the arbitration agreement signed by the 1st defendant on behalf of the 4th defendant is not valid. 8. However, defendants 1 to 3 had sent a reply dated 03.01.2003 inter alia contending that there was no arbitration agreement binding them and that the arbitration agreement signed by the 1st defendant on behalf of the 4th defendant is not valid. The plaintiff would submit that therefore the defendants 1 to 3 as guarantors became due and liable to pay the sum of Rs.2,91,14,631/- that was due and owning by the 4th defendant. 9. Though the defendants 1 to 3 had issued cheques on behalf of the 4th defendant for a total sum of Rs.2,41,22,025/- the cheques when presented were dishonoured for want of funds. The 4th defendant issued a reply dated 14.12.2000 denying their liability to repay. The plaintiff had once again issued a notice dated 21.12.2000 calling upon the defendants to clear their outstanding. There was no response to this notice. 10. The plaintiff has also contended that the Provisional Liquidator had been appointed to take over the 4th defendant Company in C.P.No.203 of 2002. The plaintiff had therefore come forward with the suit in question. 11. In this suit, though notice was issued and received by the defendants they did not choose to appear before the Court as a result of which the defendants 1 to 3 were set ex parte. The plaintiff had given up the 4th defendant since there was no relief claimed against the 4th defendant. In A.No.977 of 2020 and A.Nos.1277 and 1278 of 2020 contentions of the Defendants 1 to 4: 12. Nearly 16 years after ex parte decree had been passed, defendants 1 and 4 alone have come forward with the present applications. Common averments in these applications are herein below narrated. 13. The defendants 1 and 4 would submit that the suit is nothing but an abuse of process of Court as the plaintiff had adopted illegal tactics. The said suit has been filed after the plaintiff had filed an arbitration proceedings before the District Court, Salem in A.O.P.No.45 of 2003. In the said Original Petition, the defendants had appeared before the Court and after contest the plaintiff allowed that OP to be dismissed for default. 14. Another allegation that has been put forward by the defendants 1 to 4 is that the address of the other defendants as provided in the suit is incorrect. The applicants would submit that the plaintiff had grabbed their properties. 14. Another allegation that has been put forward by the defendants 1 to 4 is that the address of the other defendants as provided in the suit is incorrect. The applicants would submit that the plaintiff had grabbed their properties. They would also submit that pursuant to the decree, execution proceedings had also been transmitted and instituted on the file of the District Court, Salem, which was never proceeded with. 15. The defendants 1 and 4 would therefore submit that the entire transactions had been orchestrated by one Mr.Balasubramaniam who was the Auditor of the 4th defendant Company. The plaintiff has also alienated the properties and the subsequent alienees are trying to alter the superstructure by demolishing the same. 16. As regards A.No.977 of 2020, the reasons for seeking the revocation are as follows: (a) The plaintiff had projected that the registered office of the 4th defendant was at No.36, St.Mary’s Road, R.A.Puram, Chennai and leave was obtained on 12.03.2004. However, the 4th defendant had shifted their office to No.12, Ponneri High Road, Elanthancherry, Andarkuppam Post, Manali New Town, Chennai as early as in the year 2000. Therefore, the notice which has been only taken to R.A.Puram address has been returned. Further, no notice has been served on the defendants before leave had been granted. (b) The defendants 1 and 4 would submit that no part of the cause of action arose within the jurisdiction of this Court as none of the defendants were residing within the Jurisdiction of this Court. The 4th defendant’s factory is at Salem and supply has been effected only at Salem. They would submit that they were neither residing nor carrying on business within the Jurisdiction of the High Court. The plaintiff had not made out any cause of action for grant of leave and has obtained leave on false basis. 17. The suit claim being only against the defendants 1 to 3 the plaintiff has acted in a malafide manner in as much as they had initiated the suit showing the incorrect address of the 4th defendant. However, in the course of the proceedings the plaintiff had not pressed the suit against the 4th defendant. 18. Admittedly, the defendants 1 to 3 reside outside the Jurisdiction of this Court, therefore, the leave granted is liable to be revoked. However, in the course of the proceedings the plaintiff had not pressed the suit against the 4th defendant. 18. Admittedly, the defendants 1 to 3 reside outside the Jurisdiction of this Court, therefore, the leave granted is liable to be revoked. They would further submit that the respondent with malafide intention had filed the claim giving the incorrect address of the 4th defendant as the address for service of the defendants 1 to 3. The defendants 1 and 4 would further submit that neither has any part of the cause of action arisen within the jurisdictions of this Court nor were the defendants residing / carrying on business within the jurisdiction of this Court. Hence, the leave granted should be dismissed. 19. Since the suit had been instituted in a Court which lack inherent Jurisdiction the defendants 1 and 4 have moved two other applications, viz., A.Nos.1277 and 1278 of 2020. 20. A.No.1277 of 2020 is filed seeking restitution of the scheduled properties together with compensation which may be assessed by the Court. 21. A.No.1278 of 2020 is filed seeking appointment of a Court Commission to make an inventory and assess the damages, if any, caused to the scheduled properties with the help of a qualified Government approved Civil and to file a report before this Court. 22. The ground on which this application is filed is that their erstwhile Auditor had fraudulently forced the defendants 1 to 3 to execute the Sale Deeds in respect of the scheduled properties under the guise of recovering the dues under the Decree which has since been erased. It is the case of the defendants 1 and 2 that these Deeds are sham and nominal. They would further submit that the plaintiff had with the help of the police obtained Sale Deeds from the other co-parceners as well. 23. They would further contend that since the exparte decree has been set aside they are seeking restitution to place the parties to the position they occupied prior to the Decree. It is their contention that the defendants have been forced to lose their properties only on the basis of a erroneous Decree and therefore, they should be restituted. Counter filed by the plaintiff to the above application: 24. It is their contention that the defendants have been forced to lose their properties only on the basis of a erroneous Decree and therefore, they should be restituted. Counter filed by the plaintiff to the above application: 24. A.No.977 of 2020: (a) The plaintiff has objected to this application inter alia contending that several facts have been suppressed by the defendants 1 to 4 in their affidavit filed in support of the petition. The 1st defendant has no authority to represent the 4th defendant Company as an Interim Resolution Professional has been appointed for the 4th defendant by orders of the National Company Law Tribunal by its order dated 25.01.2020 in I.B.A.No.210 of 2019. They have totally suppressed the initiation of C.I.R.P. against the 4th respondent. (b) The Registered Office of the 4th defendant was within the jurisdiction of this Court. The negotiations were held at Chennai within the jurisdiction of this Court. The Palmolein imports were closed at the Port of Chennai and payments were made through the Lakshmi Vilas Bank, Govindappanaicker Street, Chennai. The Cheques issued by the defendants 1 to 3 as guarantors were also from this Bank. Since a major part of the cause of action had arisen at Chennai and as the defendants 1 to 3 were residing away from the jurisdiction of this Court the plaintiff has sought the leave of this Court to sue them. Notices were duly served on the defendants but they have not chosen to contest the leave. On the contrary in his affidavit earlier filed seeking leave to defend the suit, the 1st defendant has admitted that the Registered Office was at St. Marys Road and the imports were cleared through the Chennai Port. Therefore, no ground have been made out to revoke the leave granted. 25.(c)Common counter in A.Nos.1277 and 1278 of 2020: Apart from questioning the locus of the 1st defendant to file an application on behalf of the 4th defendant as an Interim Resolution Professional had been appointed for the 4th defendant, the plaintiff had also submitted that the applications have been filed on the basis of false allegations. The scheduled properties were not sold in execution of the Decree but had been executed voluntarily by the defendants 1 to 3. Having executed the same it does not lie in the mouth of the defendants 1 to 4 to seek restitution. The scheduled properties were not sold in execution of the Decree but had been executed voluntarily by the defendants 1 to 3. Having executed the same it does not lie in the mouth of the defendants 1 to 4 to seek restitution. The sale not being one in execution of the Decree, therefore, the relief of restitution is not available. The plaintiff would submit that they had filed a summary suit against the defendants 1 to 3 as guarantors as payments were not made by the 4th defendant. The plaintiff would further submit that the defendants 1 to 3 have executed an affidavit dated 02.12.2004 reiterating the facilities availed from the plaintiff for the supply of the Palmolein. They had also undertaken to execute a power of attorney for the sale of lands measuing an extent of 4.47 acres and 26,512 sq.ft. at Salem. the plaintiff would further submit that despite the sale of the properties in favour of the plaintiff the defendants still owed a sum of Rs.4,47,87,289/-. Further, it is not the case of the 1st defendant that he was unaware about the suit. Having voluntarily executed the Sale Deed defendants 1 and 4 are estopped from questioning the Sale. 26. Submissions: (a) Mr.Raveekumar learned counsel appearing on behalf of the defendants 1 and 4 would make the following submissions. As regards the maintainability, he would submit that the order of the NCLT has been stayed by the NCLAT and therefore, the filing of the applications are perfectly in order. With regard to A.No.977 of 2020. he would submit that the Registered Office of the 4th defendant Company was outside the jurisdiction of this Court. The address of the Registered Office is at No.12, Old No.22, Ponneri High Road, Elanthancherry, Manali New Town, Chennai -1. The address given in the suit was the Corporate Office which was vacated in the year 1998 itself. Therefore, the address given was a false one. The raising of invoices and banking transactions would not confer jurisdiction of this Court. That apart, the suit is based on the letter of guarantee which is executed at Salem. The 4th defendant is not a signatory to this letter. Further, the plaintiff has also “Not Pressed” the suit against the 4th defendant. No doubt, the defendants had not appeared after receipt of summons but there is inherent lack of jurisdiction. That apart, the suit is based on the letter of guarantee which is executed at Salem. The 4th defendant is not a signatory to this letter. Further, the plaintiff has also “Not Pressed” the suit against the 4th defendant. No doubt, the defendants had not appeared after receipt of summons but there is inherent lack of jurisdiction. Therefore, he would seek to revoke the leave granted in A.No.11334 of 2004. He would further contend that the Sale Deeds have been obtained on the basis of this non-est decree which is clearly evident from a mere perusal of the recitals regarding consideration in the respective Sale Deeds. He would therefore submit that since the sale is in execution of the decree and the same has been set aside parties should be restituted to the position prior to the decree. (b) Per contra, Mr.Venkatavaradan, learned counsel for the respondent would submit that the 1st defendant cannot represent the 4th defendant as an Interim Resolution Professional has been appointed for the 4th defendant by orders of the NCLT. This order has not been stayed and therefore, the application filed on behalf of the 4th defendant is not maintainable. He would further argue that none of the grounds for restitution has been made out by the defendants 1 and 4. he would submit that Sale Deeds were not executed pursuant to the execution proceedings but were executed independent of that. In fact prior to the execution of the Sale Deeds defendant 1 to 3 have given affidavit admitting their liability and undertaking to execute powers of attorney to enable execution and registration of the Sale Deeds. However, the Sale Deeds were later executed by the defendants 1 to 3 themselves. He also relied on a Judgment of the Bombay High Court reported in AIR 1978 BOM 303 [Purushttam Bhagwant Sulakhe and others v. Suryakant Gopal Sulakhe]. The learned counsel would submit that the remedy if any available to the defendants 1 and 4 is only to file a suit questioning the sale and not by filing the above application. He would further submit that the properties in question are not the subject matter of the suit. the suit is filed as a summary suit for recovery of money. He would further submit that the properties in question are not the subject matter of the suit. the suit is filed as a summary suit for recovery of money. Pending the suit, an Interlocutory Application was filed for an injunction in respect of the above properties and in this context, the properties were brought into the suit. Further, the Decree is not in respect of the properties. (c) As regards the application for revoking the leave granted in A.No.1134 of 2004, he would submit that admittedly a major portion of the cause of action for the suit had arisen within the jurisdiction of this Court and since defendants 1 to 3 were residing outside the jurisdiction of this Court leave was sought. Therefore, he prayed for dismissal of the above applications. 27. Discussion: A.No.977 of 2020: (A) This application is filed to revoke the leave granted in A.No.1134 of 2004. The learned counsel for defendants 1 and 2 would seek revocation on the following: (a) None of the defendants resided or carried on business within the jurisdiction of this Court (b) The raising or invoices, giving of cheques, etc., will not confer jurisdiction of the Court. (c) The plaintiff has deliberately given the addresss of the 4th defendant as St.Mary’s Road, Chennai, knowing fully well that there was no such office there since 1998. (d) The suit is based on the letter of guarantee which has been executed at Salem. Admittedly, the suit is one for recovery of money against defendants 1 to 3 on the basis of a Letter of Guarantee dated 21.05.2001 executed by them undertaking to repay the dues of the 4th defendant. In the affidavit filed in support of the leave to sue petition the plaintiff have projected these facts for grant of leave: “4. I submit that the plaintiff supplied Palmolein to the 4th defendant which has its registed office at Chennai. The plaintiff had opened Letter of Credit in favour of Maruthi Enterprises having its office at No.24, Venkatamoorthy Street, III Floor, “L“ Portion, Chennai - 1. Similarly, another Letter of Credit was also opened in favour a foreign supplier for the import of Palmolein to the 4th defendant. These Letters of Credit were opened with the plaintiffs banker, viz., Bank of India, corporate Banking Branch, Anna Salai, Chennai. The import of Palmolein was made through the Port of Chennai. Similarly, another Letter of Credit was also opened in favour a foreign supplier for the import of Palmolein to the 4th defendant. These Letters of Credit were opened with the plaintiffs banker, viz., Bank of India, corporate Banking Branch, Anna Salai, Chennai. The import of Palmolein was made through the Port of Chennai. The payment of the suppliers were made through Lakshmi Vilas Bank, George Town Branch, Chennai. The Cheques issued by the respondents/defendants were returned by the Lakshmi Vilar Bank at Chennai and correspondences between the parties were exchanged with the registered administrative office in Chennai.” 28. A perusal of the documents, particularly, Doc.Nos.4,5, 7 and 11 would show that the 4th defendant had a Corporate Office at Kasturi Bai Nagar, Adyar, Chennai, within the jurisdiction of this Court. That apart, all the cheques have been issued by the defendants from their Bankers M/s.Lakshmi Vilas Bank at Govindappa Naicker Street, Chennai, also within the jurisdiction of this Court. Therefore, a part cause of action has arisen within the jurisdiction of this Court. Therefore, since the defendants 1 to 3 are residing outside the jurisdiction of this Court leave to sue has been obtained by the plaintiff. Therefore, no grounds are made out to revoke the leave granted. (b) A.Nos.1277 and 1278 of 2020: 29. Since a common affidavit and common arguments have been addressed in respect of both these applications I shall proceed to follow suit. These applications are filed on the premise: (a) that the sale executed in favour of the plaintiff is pursuant to the exparte decree obtained by them; (b) that the exparte decree has been set aside and consequently, the parties revert back to the same position in which they were prior to the passing of the exparte decree, (c) that the recitals of the Sale Deed would clearly show that the Sale consideration is the decree amount; and (d) that the plaintiff had initiated execution proceedings but had not proceeded further to execute the same. 30. 30. The documents produced by the plaintiff in support of their contentions in the above application would indicate that pending the suit C.S.No.290 of 2004 the defendants 1 to 3 had independently executed an affidavit dated 02.12.2004 in favour of the plaintiff standing that they are aware of the pendency of the summary suit C.S.No.290 of 2004 and undertaking to execute a power of attorney in respect of a person/persons to be nominated by the plaintiff. The Power Agent so appointed was to be empowered to deal with the property in any manner that he liked sale, mortgage, lease etc. The affidavit further confirmed the mortgage by deposit of title deeds. Each of these affidavits had described the property in respect of which each of the deponent was giving the undertaking. These affidavits have been affirmed to on 02.12.2004. The 1st defendant had also admitted this affidavit. These properties are not the subject matter of the suits C.S.No.290 of 2004. Thereafter, by a Sale Deed dated 19.09.2005 registered as Doc.No.4298 of 2005, the 1st defendant had sold the property to the defendants. This Sale is not in pursuance of an execution proceedings but a voluntary transfer made pursuant to the affidavit dated 02.12.2004. The decision reported in AIR 1978 BOM. 303 (Purushttam Bhagwant Sulakhe and others v. Suryakant Gopal Sulakhe) will apply to the fact of the instant case. 31. Therefore, the prayer for restitution will not be applicable to the facts of the instant case. Further, defendants 1 to 3 had sold the property as early as in the year 2005 no steps had been taken by the defendants 1 to 3 to set aside this Sale. It is after 15 years that this application is filed. The same is not maintainable as the Sale is not one pursuant to any order is execution proceedings but only a voluntary sale by defendants 1 to 3. It is also to be noted that defendants 2 and 3 have not challenged their sale and it is only the 1st defendant who has moved the application. Once this Court has held that the 1st defendant is not entitled to be restituted it would consequently follow that he is not entitled to any compensation as also the 4th defendant. In the light of the above observations, there is no necessity to appoint a Court Commission as sought for in A.No.1278 of 2020. Once this Court has held that the 1st defendant is not entitled to be restituted it would consequently follow that he is not entitled to any compensation as also the 4th defendant. In the light of the above observations, there is no necessity to appoint a Court Commission as sought for in A.No.1278 of 2020. In the result, A.No.977 of 2020 and A.Nos.1277 and 1278 of 2020 stands dismissed. However, there shall be no orders as to costs.