Winmeen Engineers PVT LTD vs. Klassic Constructions Private LTD. - Kerala High Court, 12 April 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE ASHOK MENON FRIDAY, THE 12TH DAY OF APRIL 2019 / 22ND CHAITHRA, 1941 FAO.No. 43 of 2019 AGAINST THE ORDER/JUDGMENT IN IA NO.1213/2018 IN OS 104/2018 of PRINCIPAL SUB COURT,NORTH PARAVUR DATED 14-02-2019 APPELLANT/PETITIONER/PLAINTIFF: M/S.WINMEEN ENGINEERS PVT. LTD., HAVING ITS REGISTERED OFFICE AT 1ST FLOOR, WINMEEN TOWER, KNG PUDUR ROAD, COIMBATORE, PIN CODE-641 034, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER AND CFO, MR. K.DEVARAJ, AGED 45, S/O N.KANNAN, RESIDING AT NO.9, SIVASAKTHI COLONY, MARUTHA NAGAR, VADAVALLI, COIMBATORE, PIN CODE-641 041. BY ADVS.SRI.P.VISWANATHAN (SR.) SRI.AJITH VISWANATHAN SRI.SHIBU JOSEPH RESPONDENT/RESPONDENT/DEFENDANT: M/S.KLASSIC CONSTRUCTIONS PRIVATE LTD. HAVING ITS OFFICE AT BHASIN HOUSE, UNIK CHS LTD, MODEL TOWN, SEVEN BUNGALOWS, ANDHERI WEST, MUMBAI, PIN CODE-400 058, REPRESENTED BY ITS MANAGING DIRECTOR. BY ADVS.SRI.T.KRISHNANUNNI (SR.) SMT.NEETHU REGHUKUMAR SRI.DENU JOSEPH SRI.SAJI MATHEW OTHER PRESENT: SRI. P.VISWANATHAN SR- FOR APLNT., SRI. T.KRISHNANUNNI SR- FOR -RESP THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 12.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

FAO 43/2019 -2- J U D G M E N T Shaffique, J. This appeal is filed by the plaintiff in OS No.104/2018 on the file of Principal Subordinate Judge's Court, North Paravur. The suit is filed for recovery of an amount of Rs.2,77,68,929/-. An application, IA No.1213/2018 has been filed under Order XXXVIII Rule 5 of the Code of Civil Procedure read with Order XXI Rule 46, 46A and Section 151 of CPC to issue a prohibitory order attaching an amount of Rs.2,77,68,929/- available with the garnishee, M/s.Cochin International Airport Limited (CIAL). According to the petitioner, the amount claimed represents the balance amount due for the work undertaken by the plaintiff on behalf of the defendant. The garnishee in their affidavit stated

FAO 43/2019 -3- that an amount of Rs.1,80,41,000/- was due to the defendant which was the amount lying as performance guarantee.

The defendant filed a counter affidavit inter alia stating that the petitioner had filed an earlier Suit, OS No.666/2018, before the Principal Subordinate Judge's Court, Coimbatore, and sought for a mandatory injunction to direct the garnishee to make payment of bank guarantee and security deposits relating to the respective agreement in the joint account of the plaintiff and the first defendant with Punjab National Bank, Gandhipuram Branch. It is stated that the defendant appeared in the case and filed a counter affidavit producing receipts, which indicated full and final settlement of the amount due to the plaintiff. The plaintiff had therefore withdrawn the said suit and without

FAO 43/2019 -4- mentioning anything about the said suit and the disposal of the same, the present suit has been filed with a malafide intention. They also produced the documents evidencing full and final settlement of the claim of the plaintiff and therefore, according to them, there is no reason to keep the garnishee proceedings pending and the attachment is required to be vacated. The trial court, observed that the documents which are relied upon by the defendant clearly indicate that the entire issue between the plaintiff and the defendant had been settled with reference to their claim and therefore, there is no reason to keep the attachment

pending,

and accordingly,

the application for attachment was dismissed vacating the order of the attachment.

FAO 43/2019 -5-

The learned Senior counsel for the appellant, Sri.P.Viswanathan, submits that Exts.B3 and B4 documents relied upon by the defendant are fabricated documents and therefore, the court below was not justified in placing reliance on the same. Being a disputed question relating to discharge of the liability, the attachment has to be continued failing which ultimately when a decree is passed in favour of the plaintiff, nothing would be left for executing the decree.

On the other hand, the learned Senior Counsel Sri.T.Krishnanunni, appearing on behalf of the defendant submitted that the original suit was filed before the Coimbatore Court inter alia contending that the amount payable by the CIAL has to be deposited in a joint account and therefore, the request was that the amount, including the

FAO 43/2019 -6- security amount, furnished to CIAL as performance guarantee has to be deposited in the joint account. But no claim has been made stating that any amount was legally due as on the said date of filing the suit as settlement of liability. The suit was filed before the Coimbatore Court on 19.6.2018. Ext.B3 is a letter issued by the plaintiff on 25.05.2017 which indicates that the total amount payable by the defendant was Rs.6,11,07,589/-. Ext.B4 is a document which would indicate that the said payment had been made. The plaintiff has a case that these documents are false. But it is relevant to note that these documents were filed before the Coimbatore Court and it was at that stage that the said suit had been withdrawn, without even seeking liberty to file a fresh suit. Thereafter without disclosing the said factual

FAO 43/2019 -7- aspects, the present suit has been filed. It is when the defendant had produced the very same documents before this Court that an affidavit has been filed stating that those were forged documents and prepared with the connivance of certain officers of the plaintiff and defendant.

On a perusal of the affidavits filed on either side and having heard the learned counsel on either side, we are of the prima facie view that there is no justification for the claim for the balance bill amount, especially in the light of Ext.B3 and B4 documents. That apart, in Ext.B2, which is an undisputed document, the final running bill was for an amount of Rs.7,21,06,955/-, which includes the GST as well. Therefore, the final bill amount which had been given by the petitioner, included the GST also. It is also pointed out that

FAO 43/2019 -8- the total contract value of the amount payable to the main contractor-defendant was being deposited in a joint account as per the terms of agreement and 99.5% of the amounts was withdrawn by the plaintiff. Therefore, when CIAL in their affidavit says that the amount now payable to the defendant represents the performance guarantee amount which admittedly is deposited by the defendant, prima facie, we are of the view that the claim made by the appellant/plaintiff cannot be entertained.

Another claim raised was for liquidated damages. The liquidated damages can arise only in a case where there is a contract between the parties and so far there is no material to indicate that any such claim had been made earlier. Under such circumstances, we do not think that the court

FAO 43/2019 -9- below has erred in vacating the attachment and dismissing the said application for attachment. This appeal is therefore dismissed. However, we make it clear that our findings are based on a prima facie satisfaction and these findings shall not preclude the court below in adjudicating the suit, in accordance with the procedure. No costs. A.M.SHAFFIQUE JUDGE ASHOK MENON JUDGE