Shri Sai Air Conditioning v. Videocon International Ltd & Anr

IN THE HIGH COURT OF DELHI AT NEW DELHI % judgment Reserved on: 18.01.2012 judgm ent Deli vered On: 31.01.2012 + CM(M) 848/2010 & CM No.18831/2011 M/S SHRI SAT AIR CONDITIONING. .... .Petitioner Through: Mr. Prag Chawla, Adv. versus M/S VIDEOCON INTERNATIONAL LTD & ANR Respondents I Through: Mr. M.L. Sharma, Adv. CORAM: HbN'BLE MS.JUSTICE INDERMEET KAUR. INDERMEET KAUR, 1. . . . For judgment see CM(M) No.80/2010. INDERMEET KAUR, J JANUARY 31,2012 . . nandan Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Cr IS_ u , hftp '19 100 10 ml/ielLLl IN THE HIGH COURT OF DELHI AT NEW DELHI % ];dgment Reserved on: 18.01.2012 Jug nent Delivered on 31 01 2012 , I . - I CM(j1[) 80/2010 & CM No 18840/20131 M/S SAT AIR CONDITIONONG Petitioner Through: Mr. Prag ChawlaJAdv, • is. •. . -H H versus • .. . . ..:.. -. H M/S.VIDEOCON INTERNATIONAL LTD & AN ......Respondents. Through L\r. M L Shaima Ad 4 1 S . . CM(M) 848/2010 & CM No 18831/2031]! . . . . ... M/S SHRI SAT AIR CONDITIONING Petitioner Thiough MT Piag ChawLi Adv. S. ...... • .•t versus . .• . . . . . ... ............................... .1. . .. MIS VIDEOCON INTEATION'\I LTD & ANR Rs 1iondents Through Mi M L Sharma Ad\' ..COIAM:.. •Ho'.BLE MS. JUSTICE INDERMEET KAIUR S .. . . •. .5 r . . . ... . . . . . INDERMEET KAUR, L . .. . 1 Two orders have been impugned before this Courl vide two separate petitions; first order is dated 13.10.2009 and the second . . . S. oider is dated 29.3.2010.Vide order dated 13 10 2009 the 5 . •.• ••: •. •• . - S ;5 . • 15, fr CM(M) Nos, 80/2010 & 848/2010 Pigc 1 o17 dop -: . . . . . IF •- H .. . . :5.. 5, . / . .. S • • ... .. or I/I 100 U I t1mI/deILa ph tin 0 ii) 1p I - L ti Ip #4 application filed by the decree holder undcr Order VI Rule 1 7 f I the Code of Civil Procedure (hereinafter refe red to as the Code) ....i . . . : • .. I I (in the course of the execution proceeding) tobnng on record JI MIS Videocon Industries Ltd as the judgr ent debtor had been .. ... w . . ..' ; .. . • • • • declined. Vide the second impugned orcter applivation filed • . . . , . L by M/s Videocon Industries Ltd seekiric a direction from the . . y ' •.•• • K . . . . : • . . . .. J executing court not to issue warrants of aLt dchment at the addi ess : of M/s Videocon Industries Ltd. had bee allowed. Both these : • • 1I,L . . I •. .: c- . orders are the subject matter of the prec t two petitions . . . . . t . . . . i 2. The record shows that a suit had beñ filed by M/s Shri Sai: • I I ', : • . . . . . .. . l )' .r Conditioning against M/s Videocon international. This' suit .

. AT was a suit for recovery which was decried ex paite on 15 5 2007 as none had appeared on behalf of the iefendant An application idër• Oker IX Rule 13 of the Code had been fild o 02.7.2007 MIs Videocon Industries seeking setting aside! of this cx parte t

Wecree, dated 15 5 2007 Contention in this application was thaL M/ Videocon International has since been amaigmated with M/s • .; "'Videocon Industries Ltd. w.e.f. 07.12.2 005; M/s . Videocon iriternatibnal has lost its character as a separate company having ki amalgamated in the M/s Videocn Indtries Ltd. and a .uch no i suit could have been filed or was rna'nrainalle against M/s • • • • • CM(M)Nos; 80/2010 & 848/2010 Page 2 ol 7 • •• ..• • • • S • • • S . •• • • S • • •• • •. • • • : rI - • • • • • i http Ill 92 100 0 hifll1/dLILC1 )hfl du f: .. •.. . . . . k" . L Videocon International which was et nen-existent company on the date of the filing of the suit (suit filed n 2006); further the fact of . .. . . . . this amalgamationwas well known to the p1aintff 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 . 1. . . . . . . the knowledge of M/s Videocon Industues only when the Chairman bf M/s Videocon International informed ttem which was much later. The decree had been obtained by fraud Accordingly the prayer, made in the application was that the . said ex parte ftL decree dated 15 5 2007 he set aside 3 The a.pplication under Order IX Ruie 13 of the Code was dismissed on 03 9 2007 Contention of the applicait therein that Mis Videocon Industries Ltd: and M/s Videocon In.ternatnal Ltd. are two separate entities was noted. Court. was of i the view that 4 M/s ideocon Industries has no locus stanth to move the present application as the ex parte decree had been passed against MIs . ,. . . . . . 4p•'.., Videocon International Ltd. This application was dsmissed m2 03 9 2007 this order has since attained a finality. No appeal has been filed against the said order. . . 41 . Veherient arguments have been addressed on behalf of the

¶1CM(M) Nos. 80/2010 & 848/2010 1 age 3 oF7 http:/iI9. 100. o. 'niI/dcJc ihp?cI i t((: 1716 petitioner/plaintiff; his contention is that the factum of the arnalgrnatin. of the two companies was brought to the kfiQwledg'e of the plaintiff only at the time when an applidatiOn: imderOi -der IX Rule 13 of the Code had been filed by M/s VideoconIndutries which was in 2007; this factdrn was never iii the knowledge of the plaintiff and as such the coitentIon that the decree hs been obtained by the plaintiff against a non existent company is an illegality Further contention beirg that it was in : . these circumstances that the plaintiff/decree no1d€r had moved an dpplicatlon under. Order 6 Rule 17 of the Code seeng impleadment of M/s Videocon Industries as a1ecessary party but .1 .•. ... . this has been erroheously declined. . I . .

¶5it is not in dispute that the ex parte decree had been H . .. . . . . obtanedagamst •M/s Videocon International Ltd. and not MIs 1Ijdeoconthidustrie even presuming that this caie to be known H . . . . . . .o thea: decree holder/plaintiff only on 0227.2007 (whn the .ppu cation under Order IX Rule 17 of the Code was filed), nothing. . prevented :the dedree holder/plaintiff at that time to rñove an ' ... ppropria e application. seeking impleadment oft M/s Videocon . industries Ltd that was not done the appl'cation under Order VI Rule 17 of the Code has been filed only on 183.2009 aftei an : ®r? unexplainable delay; ex parte decree dated 15.5.2007 stood II c6nfirmed on 02.9.2007 when the application tinde - Order IX Rule 13 of , the Code of M/s Videocon Jndustr.es had been dimisd. Applicatin filed under Order 6 Rule 17 of the Code on 18.07.2009 was highli be] ated; no explanation for the delay was also given. 6; ;ThHiaw is clear that once a company amlgamates with • another under a Scheme sanctioned by the court which in this case was i,n the year 2005, the transferor compay losses of its estnce;'it becomes non-existent; it is a dead enti.

¶7''In MANU/DE/9011/2007 Bank Kreiss Ag. VsL Mr. Asl7bk K ....'. . . . - hauhan & Ors decided on 23 10 2007 a Bench f this Comt in the context of a merger between two companies had noted that on such a mei-ger the transferor company losses its 'ideitity; in such a se the transferee company could file an application unei Ordei Rule 10 of the Code which application would hve to be filed H . ii afore the suit stood, abated. In this case even as per the )titioner the two companies i.e. M/s. Videocon International Ltd. 1ad M/s Videocon Industries stood merged on 07.1.2005; decree had been passed in favour of the pIantiff and against M/s ViU.ocon International Ltd. prior 'thereto i.e. on 1505.2005. This J j fact even as per the petitioner 'came to his knowledge óñ ' .' M(M) Nos. 80/2010 & 848/2010 Pagc 5 nI 7

L H LU

92.0

I.-. .pplication under Order 91 Rule 13 of the -iate application was not filed even at that Order 6 Rule 17 of the Code was filed.

3.07.2009 without any exlanation for the stances the ärJ.ication ndOr Order VI. seeking impleadment of MIs Video.con of the execution proceedings was rightly .ed upon by the learred ounsel for the reported as AIR 1964 Maaras 236 c.TA. Vs. M. G.Ramswami Filial and 1992 3 at.h Bhar -a va Vs. Smt. Ku.uni Kurnarl are Lspute that an application under Order VI an be preferred even at th state of it the prayer has to be ealuated in fhe Se. The amendments soght for in the e that M/s Videocon Inthstries Ltd. be. con International Ltd. aainst whom a y the dismissal of the aplicauon under e Code) on 03.9.2007; application for year 2009 by M/s. Videobon Industries Pugc6ol'7

¶1000. • - '4 Ill LI/w I / \ DELHI was even otherwise not the proper rerned. as the parameters of Order VI Rule 17 of the Code specify that an an hdent is for the purpose of determining real question in the dispite or contioversy which is existing between theparies ' in this case M/s .Videocon Industries Ltd. was admittedly not apart. In this scenailo the application under Order VI Rule 1 7 of the Code was rightly dismissed; the impugned order dated 13L10.2009 thus • • calls for no interference. • • 9. The necessary corollary is that the seecnd inpugned ordei dated 29.3.2010 also suffers from no infirniitv. Te decree was against M/s Videocon International; the warfants of attachrnet could not be addressed at the address of M/s Videodon Indilistries • Ltd. Thus this prayer of MIs Videocon Industries was rigbtly allowed by the second impugned order.

¶10Petitins are without any merits. Dismissed. H