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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
AJAY MOHAN GOEL, J.
Kenny Abraham, Director, Supermax Personal Care Private Limited & Ors. - Petitioners
Versus
Tigaksha Metallics Private Limited & Ors. - Respondents
Civil Misc. Petition Main (Original) Nos. 237 & 236 of 2021
Decided On : 08-03-2022
Constitution of India, 1950 - Article 227 - Civil Procedure Code, 1908 - Order 7 Rule 11 - Arbitration and Conciliation Act, 1996 - Section 9 - Civil Suit - Summons - Adjudication of a suit - Manufacturing, finishing and packaging safety razor blades for SPCPL on work job basis - Unlawfully and wrongfully remove then Director - Whether in peculiar facts of this case, otherwise also, in exercise of its power of superintendence, Summons issued to petitioners by learned Trial Court are liable to be set-aside or not - Seeking direction under Article 227 of Constitution, calling for papers and proceedings relating to Suit, filed by respondent No.2 on behalf of respondent No.1 before Court of Senior Civil Judge including Summons issued by Court of Senior Civil Judge and after going through same to examine legality and validity of Summons and further quash, set-aside the same.
Finding of the Court:
It is settled law that ordinarily in exercise of power so conferred under Article 227 of Constitution orders passed by the learned Court below are not to be interfered with if view so taken by learned Court below is a possible view on basis of material before it and it is only where there is perversity writ large on face of orders or in act of learned Trial Court, that this Court interferes under Article 227 - Petitioners want Summons issued by learned Trial Court to be quashed and set aside simply because in their view Civil Suit is not maintainable and its filing is an abuse of process of law. The reason as to why this Court has used expression “in their view” is that stage at which petitioners have approached this Court for setting aside of Summons is where they have not even filed written statements before learned Trial Court apprising Court of defence of petitioners which defence can always question maintainability of Civil Suit per-se. Therefore, this Court is convinced that at this stage no case has been made out by petitioners for setting aside of Summons issued by learned Trial court by exercising jurisdiction so conferred upon it under Article 227 of Constitution –
Result: Petitions dismissed
JUDGMENT :
By way of these two petitions filed under Article 227 of the Constitution of India, the petitioners have prayed for the following reliefs:-
b. Pending the hearing and final disposal of the present petition, this Hon’ble Court be pleased to stay the effect and operation of the Summons issued in the suit by the Court of Senior Civil Judge, Amb and any further proceedings in Suit No.200 of 2021 before the Court of Senior Civil Judge, Amb.”
2. As similar facts and same moot issues are involved in both these petitions and further as common arguments were addressed by the contesting parties in the said petitions, the petitions, therefore, are being decided by a common judgment.
3. The petitioner in CMPMO No. 235 of 2021 is stated to be the Chief Executive Officer of Super-Max Group of Companies and according to him his role includes overseeing, managing and handling the commercial operations and management of the two Super-Max Group Companies in India i.e. respondent No.1 i.e. Tigaksha Metallics and SPCPL. Petitioner in CMPMO No. 236 of 2021 is stated to be the former Company Secretary of respondent No.1, who was working as such from 14.12.2010 to 08.02.2018 and is presently stated to be working with Super-Max Group, Personal Care Pvt. Ltd., as Manager Compliance and Legal.
4. The case of the petitioners is that from the year 2011 till February, 2018, respondent No.1 was involved in manufacturing, finishing and packaging safety razor blades for SPCPL on work job basis. In February, 2018, respondent No.2 alongwith other individuals, acting at the behest of Sh. Rakesh Malhotra, a promoter of Super-Max Group, tried to unlawfully and wrongfully remove the then Director of respondent No.1 and gain unlawful entry into the facilities of respondent No.1 in Himachal Pradesh. He forcibly took over control over these facilities. On 12.02.2018, respondent No.2 illegally acting on behalf of respondent No.1, terminated the job work agreement between SPCPL and respondent No.1. SPCPL initiated proceedings under Section 9 of the Arbitration and Conciliation Act, 1996, hereinafter referred to as 1996 Act, in the High Court of Bombay seeking interim reliefs. Vide orders dated 16.02.2018, 21.02.2018, 03.03.2018, 27.03.2018 and 16.05.2018, the Bombay High Court directed the Court receiver to visit the facilities of respondent No.1 and after carrying out inspection, seal all the machines belonging to SPCPL. The Court receiver sealed all machines of SPCPL lying at the facilities of respondent No.1 in Himachal Pradesh by 24.05.2018. Respondent No.2 claims to be a Director of respondent No.1, on the basis of nomination made by Super-Max Mauritius (SMM), one of the two share holders of respondent No.1, in terms of letter dated 07.02.2018, which method for appointment of a Director is not recognized under Indian law. Knowing fully well that this appointment was not legal under Indian Law, SMM yet sought to convene an Extra Ordinary General Meeting of respondent No.1 by issuing notice dated 08.02.2018. This was to ratify the purported appointment of respondent No.2 as a Director of respondent No.1. This Court vide order dated 21.02.2018, passed in Arbitration Case No. 8 of 2018, restrained the respondents from holding the Extra Ordinary General Meeting. This petition, which was preferred under Section 9 of the Arbitration and C
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