SAI AIR CONDITIONONG Vs. VIDEOCON INTERNATIONAL LTD

JUDGEMENT

(1.) TWO orders have been impugned before this Court vide two separate petitions; first order is dated 13.10.2009 and the second order is dated 29.3.2010. Vide order dated 13.10.2009 the application filed by the decree holder under Order VI Rule 17 of the Code of Civil Procedure (hereinafter referred to as the Code) (in the course of the execution proceedings) to bring on record M/s Videocon Industries Ltd. as the judgment debtor had been declined. Vide the second impugned order the application filed by M/s Videocon Industries Ltd. seeking a direction from the executing court not to issue warrants of attachment at the address of M/s Videocon Industries Ltd. had been allowed. Both these orders are the subject matter of the present two petitions.

(2.) THE record shows that a suit had been filed by M/s Shri Sai Air Conditioning against M/s Videocon International. This suit was a suit for recovery which was decreed ex parte on 15.5.2007 as none had appeared on behalf of the defendant. An application under Order IX Rule 13 of the Code had been filed on 02.7.2007 by M/s Videocon Industries seeking setting aside of this ex parte decree dated 15.5.2007. Contention in this application was that M/s Videocon International has since been amalgamated with M/s Videocon Industries Ltd. w.e.f. 07.12.2005; M/s Videocon International has lost its character as a separate company having amalgamated in the M/s Videocon Industries Ltd. and as such no suit could have been filed or was maintainable against M/s Videocon International which was a non -existent company on the date of the filing of the suit (suit filed in 2006); further the fact of this amalgamation was well known to the plaintiff as a public notice had been effected pursuant to which this scheme has been sanctioned; contention being that no summons had been served upon M/s Videocon Industries Ltd; ex parte decree had come to the knowledge of M/s Videocon Industries only when the Chairman of M/s Videocon International informed them which was much later. The decree had been obtained by fraud. Accordingly the prayer made in the application was that the said ex parte decree dated 15.5.2007 be set aside.

(3.) VEHEMENT arguments have been addressed on behalf of the petitioner/plaintiff; his contention is that the factum of the amalgamation of the two companies was brought to the knowledge of the plaintiff only at the time when an application under Order IX Rule 13 of the Code had been filed by M/s Videocon Industries which was in 2007; this factum was never in the knowledge of the plaintiff and as such the contention that the decree has been obtained by the plaintiff against a non -existent company is an illegality. Further contention being that it was in these circumstances that the plaintiff/decree holder had moved an application under Order 6 Rule 17 of the Code seeking impleadment of M/s Videocon Industries as a necessary party but this has been erroneously declined.