ICDS LTD., MANIPAL Vs. TRUCTZSHLER INDIA PRIVATE LIMITED

JUDGEMENT

(1.) In this petition under Article 227 of the Constitution of India the petitioner has assailed the validity of the orders dated 23.04.2010 passed by the Trial Court by which application filed by the respondent No.1 under Order 7 Rule 10 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code' for short) has been allowed and the plaint has been returned to the petitioner for presentation before the competent court. The petitioner also assails the validity of the order dated 31.08.2012 passed by the appellate court, by which the aforesaid order has been upheld in appeal. In order to appreciate the petitioner's grievance, few facts need mention, which are stated hereinafter.

(2.) The petitioner is one of the largest non banking financial companies of the country. In the year 1995, respondent No.2 viz., M/s REPL Engineering Ltd., (hereinafter referred to as 'the REPL' for short) approached the petitioner with a request to import six wind operated electricity generators from M/s Bonus Energy, Denmark and to release the same in their favour. The petitioner entered into a Memorandum of Understanding With REPL on 08.02.1995. The petitioner thereupon placed an order with M/s Bonus Energy, Denmark for six wind operated electricity generators and approached Syndicate Bank, Manipal to finance the purchase. The aforesaid bank thereupon opened a Letter Of Credit in favour of M/s Bonus Energy, Denmark for an amount of Rs.5,56,46,475/-. Thereafter, M/s Bonus Energy, Denmark shipped six wind operated electricity generators which were received by the customs at Madras. The Syndicate Bank, Manipal paid the value of six wind operated electricity generators and debited the account of the petitioner with an amount of Rs.5,56,46,745/-.

(3.) It is the case of the petitioner that on 20.09.1995 a lease agreement was executed between the petitioner and REPL whereunder wind operated electricity generators were leased by petitioner in favour of REPL. This agreement was accepted by the petitioner at Manipal in the State of Karnataka within the jurisdiction of Court at Udupi. The petitioner in December 1998 learnt that REPL had illegally and without consent and concurrence of the petitioner shifted the wind operated electricity generators. The petitioner thereupon made enquiries with Gujrat Energy Development Agency and from the communication dated 03.04.1998 sent by the aforesaid authority learnt that four of the electricity generators are located at Navadra and belong to Trumac Engineering. The petitioner thereupon filed a criminal complaint on 30.04.1998 with the Second Additional Judge and JMC, Udupi against REPL and also issued a notice to the insurance company on 27.06.1998 with regard to its claim over the wind operated electricity generators. In response to the communication sent by the petitioner dated 29.09.1998, the insurance company by a communication dated 06.11.1998 informed the petitioner that Trumac has purchased the wind operated electricity generators from REPL and it is not possible for them to withhold the insurance amount since, Trumac had approached the consumer court.