IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03.06.2024 CORAM THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI O.S.A. (CAD) No. 52 of 2024 and C.M.P.No.11445 of 2024 in O.S.A. (CAD) No.52 of 2024 The Oriental Insurance Company Ltd., rep. By its Managing Director, A-25/27, Asaf Ali Road, New Delhi – 110 002. .. Appellant Vs

1.M/s.Syndicate Bottles Pvt. Ltd., rep. By its Managing Director A.P.Ashok Kumar, 45, Guruvappa Chetty Street, Chintadripet, Chennai – 2.

2.M/s.Himaja Poultries Pvt. Ltd., rep. By its Managing Director S.Divya, Door No.100, S.No.93/1B, Chettipedu, Mevaloorkupam, Sriperumbudur – 601 105.

3.M/s.Space N Place Promoters Pvt. Ltd., rep. By its Managing Director A.P.Ashok Kumar, S.No.405, MTH Road, Pattabiram, Chennai – 72.

4.A.P.Ashok Kumar

5.A.Manimala

6.M/s.Allied Insurance Surveyors & Loss Assessors Pvt. Ltd., rep. By its Managing Director, Room No.5, Building No.7, Mittal Industrial Estate, Marol, Andheri East, Mumbai – 400 059.

7.Kotak Mahindra Bank Ltd., rep. By its Managing Director, 27 BKC, C27, G Block, Bandra Kurla Complex, Bandra (East), Mumbai – 400 051. ..

Respondents Appeal filed under Section 13(1) of The Commercial Courts Act, 2015 read with Order 36 Rule 1 of O.S. Rules against the fair and decretal order dated 10.04.2024 in A.No.1168 of 2024 in C.S. (Commercial Division) No.74 of 2021.

For Appellant : Mr.M.V.Swaroop For Respondents : Mr.Avinash Wadhwani for R1 to R5 JUDGMENT (Judgement of the Court was delivered by M.Sundar, J.

Captioned 'Original Side Appeal' (hereinafter 'OSA' for the sake of brevity) is directed against 'an order dated 10.04.2024 made in A.No.1168 of 2024 in C.S. (Commercial Division) No.74 of 2021' by Hon'ble Commercial Division of this Court (hereinafter 'impugned order' for the sake of convenience and clarity). 2. Respondents 1 to 5 before us are the plaintiffs before the Commercial Division and plaintiffs while presenting the aforementioned suit took out an application in A.No.1996 of 2021 (in C.S. Diary No.13098 of 2010) with a 'Leave To Sue' (LTS) prayer under Clause 12 of Letters Patent. This LTS prayer was acceded to by the Commercial Division in and by an order dated 01.06.2021. Thereafter, the suit was taken on file as C.S. (Commercial Division) No.74 of 2021 (to be noted, suit number has been mentioned supra).

3. In the suit, the appellant before us is first defendant (D1) and respondents 6 and 7 before us are D2 and D3 respectively. As regards Defendants 2 and 3, we are informed that they remained exparte before the Commercial Division.

4. In the aforementioned backdrop, D1 took out aforementioned application in A.No.1168 of 2024 with a prayer for revocation of LTS granted on 01.06.2021 in A. No.1996 of 2021 and the same came to be dismissed in and by the impugned order.

5. Adverting to the impugned order, Mr.M.V.Swaroop, learned counsel on record for appellant submits that even on a demurrer i.e., even if it is assumed that right of D1 to file written statement stands forfeited that cannot be a ground to dismiss the revoke LTS prayer.

6. Finding that a prima facie case has been made out, we issued notice and Mr.Avinash Wadhwani, learned counsel who was on caveat for the first plaintiff (first respondent before us)

accepted notice for R1 to R5 before us.

7. To be noted, in the light of the narrative thus far, it will be clear that presence of respondents 6 and 7 (D2 and D3) is really not imperative for disposal of the captioned OSA as the matter now perambulates within the legal perimeter of revoke LTS prayer only, however, we would be preserving the rights of R6 and R7 (D2 and D3) details of which will be set out infra in this order. In this scenario, both learned counsel before us i.e., Mr.M.V.Swaroop and Mr.Avinash Wadhwani very fairly agreed to have the main OSA taken up, heard out and disposed of.

8. Main OSA turns on one short point and that is whether the application by first defendant seeking revocation of LTS be dismissed o