IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 22^ND DAY OF SEPTEMBER 2021

BEFORE

THE HON9BLE MR. JUSTICE B. M. SHYAM PRASAD

WRIT PETITION NO.16981/2021 (GM-CPC)

BETWEEN :

KIRLOSKAR ELECTRIC

COMPANY LIMITED

A COMPANY LIMITED UNDER

THE PROVISIONS OF THE

COMPANIES ACT, 2013

HAVING ITS REGISTERED

OFFICE AT NO.19, 2^ND MAIN ROAD,

PEENYA 1^ST STAGE, PHASE 1,

PEENYA,

BENGALURU - 560 058.

REPRESENTED BY ITS AUTHORISED

SIGNATORY K S SWAPAN LATHA.

... PETITIONER

(BY SRI. VEDANTH ANAND CHUGH., ADVOCATE FOR

SRI. PRADEEP NAYAK, ADVOCATE FOR

M/S. KEYSTONE PARTNERS., ADVOCATE)

AND :

1.

RECHTSANWALT EDGAR GRONDA

INSOLVENCY ADMINISTRATOR

FOR THE ASSETS OF LD

ABWICKLUNGSGESELLSCHAFT

MBH AND CO KG

(FORMERLY LOYD DYNAMOWERKE

GMBH AND CO)

DOMSHOF 18-20, BREMEN - 28195.

2

2.

LLOYD DYNAMOWERKE GMBH AND CO.KG

HASTEDTER OSTERDEICH 250,

D-28207, BREMEN GERMANY

NOW ACTING UNDER THE

NAME OF LD ABWICKLUNGSGESELLSCHAFT

MBH AND CO.KG (IN INSOLVENCY)

CURRENTLY REPRESENTED

THROUGH ITS COURT APPOINTED

INSOLVENCY ADMINISTRATOR.

... RESPONDENTS

THIS WRIT PETITION IS FILED UNDER ARTICLE 227

OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT

CONTINUATION OF EX PARTE AD INTERIM ORDER OF

TEMPORARY INJUNCTION DATED 4.8.2017 PASSED BY

THE

LEARNED

LVII

ADDITIONAL

CITY

CIVIL

AND

SESSIONS JUDGE (CCH-58) IN O.S.NO.25901/2017 IA

NO.2 VIDE ANNEXURE-D.

THIS WRIT PETITION COMING ON FOR PRELIMINARY

HEARING,

THIS

DAY,

THE

COURT

MADE

THE

FOLLOWING:-

O R D E R

The petitioner, who is the plaintiff in O.S.

No.25901/2017 on the file of the LVII Additional City

Civil and Sessions Judge, Mayohall Unit, Bengaluru [for

short 'the civil Court'], has filed this petition impugning

the civil Court's order dated 27.08.2021. The civil Court

by this impugned order has rejected the petitioner's

application under Section 151 of the Code of Civil

3

Procedure, 1908 [for short 'CPC'] for recall of the order

dated 23.08.2021 and continuation of the ex parte

interim order granted by the civil Court at the first

instance.

2.

The petitioner has filed this suit in O.S.

No.25901/2017 for declaration that the Comfort Letters

dated 18.06.2014 issued by the petitioner in favour of

the second respondent are unenforceable and as void,

and the petitioner has filed an application [I.A. No.2] for

grant of ad interim order restraining the respondents

from calling upon the petitioner to make any payment

consequent to the impugned comfort letters. The civil

Court, considering this application, has granted ex parte

ad interim order opining that the very purpose of the

suit would be defeated if the petitioner is called upon to

meet the financial obligations consequent to the

impugned Comforting Letters. The civil Court has

elaborately referred to the petitioner's case before

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arriving at the conclusion that the petitioner has made

out for grant of ex parte ad interim order. This ex parte

ad interim order has been continued from time to time

until its discontinuance on 23.08.2021 prompting the

petitioner to file its application for restoration of the ex

parte ad interim order.

3.

The learned counsel for the petitioner

submits

that

the

first

respondent

[the

second

defendant], who is appointed the first defendant -

second respondent9s Insolvency Administrator, is served

with the suit summons but has remained ex parte; with

the initiation of insolvency proceedings against the

second respondent and the Insolvency Administrator

taking over the custody of the second respondent9s

assets, there would be constructive notice of the suit

even to the first defendant. The Insolvency petition is

commenced at the instance of the Directors of the

second respondent and therefore, they would not be

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interested in prosecuting the suit. These circumstances

had to be brought to the notice of the civil Court for

necessary orders on due service to the