Quashed

Adani Vizhinjam Port Pvt. Ltd. v. State of Kerala

Kerala HC11 Jan 2021Crl.MC/3806/2020

Case brief

AI extract

What is this about?

Petitioners sought quashing of criminal proceedings for cheating. The court held that the dispute arose from a concluded contract's breach involving supply of rock boulders, constituting civil liability rather than criminal fraud. The order taking cognizance was quashed as it would be a futile exercise to proceed further.

What did the court decide?

The complaint and the order taking cognizance against the petitioners are quashed. Crl.M.Cs. are allowed.

Adani Vizhinjam Port Pvt. Ltd. Vs State of… — Contract and Commercial Disputes | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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MONDAY, THE 11TH DAY OF JANUARY 2021 / 21TH POUSHA, 1942

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Crl.MC.No.3800 OF 2020(D)

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AGAINST THE ORDER/JUDGMENT IN CC 331/2020 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE ,TRIVANDRUM

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PETITIONER/1ST ACCUSED:

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HOWE ENGINEERING PROJECTS (I) PVT. LTD. HAVING ITS REGISTERED OFFICE AT E 102, SANSKAR APARTMENT, OPPOSITE TO KARNAVATHI CLUB SG HIGHWAY, SATELITE, AHEDABAD, GUJARAT - 380 015, REPRESENTED BY ITS DEVENDRA SHIVLALBHAI THAKAR.

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BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.ROSHEN.D.ALEXANDER SMT.TINA ALEX THOMAS SHRI.HARIMOHAN K

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RESPONDENTS/ STATE & COMPLAINANT

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1 STATE OF KERALA THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNKAULAM - 682 031.

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2 MEGA TRADING CORPORATION HAVING ITS REGISTERED OFFICE AT DAS NAGAR, KUNNAPPUZHA, ARAMADA P.O., THIRUVANANTHAPURAM, REPRESENTED BY MR.GIREESH PILLAI, S/O.K.N.SIVASANKARA PILLAI, SIVA NIVAS, PAZHAVEEDU P.O., ALAPPUZHA.

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R1 BY DIRECTOR GENERAL OF PROSECUTION

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R1 BY ADV.SMT.M.N.MAYA, PUBLIC PROSECUTOR R2 BY ADV. SRI.SIBI THOMAS JACOB R2 BY ADV. SRI.V.P.RAMESAN R2 BY ADV. SRI.P.VIJAYA BHANU (SR.)

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11.01.2021, ALONG WITH Crl.MC.3806/2020(E), THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.3800/2020 & Crl.MC.3806/2020

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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MONDAY, THE 11TH DAY OF JANUARY 2021 / 21TH POUSHA, 1942

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Crl.MC.No.3806 OF 2020(E)

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AGAINST THE ORDER/JUDGMENT IN CC 331/2020 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE ,TRIVANDRUM

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PETITIONER/ACCUSED 3,8,4 &6:

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1 M/S.ADANI VIZHINJAM PORT PVT. LTD. HAVING ITS REGISTERED OFFICE AT ADANI CORPORATE HOUSE, SHANTIGRAM. NEAR VAISHNO DEVI CIRCLE, S.G. HIGHWAY, KHODIYA, AHAMEDABAD - 382421.AND HAVING ITS BRANCH OFFICE AT 2ND FLOOR, VIPANCHIKA TOWERS, THYCAUD, THIRUVANANTHAPURAM, REPRESENTED BY ITS MD AND CEO MR.RAJESH KUMAR JHA.

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2 KARAN GAUTAM ADANI ADANI VIZHINJAM PORT PRIVATE LIMITED, ADANI CORPORATE HOUSE, SHANTIGRAM, NEAR VAISHNO DEVI CIRCLE, S.G. HIGHWAY, KHODIYA, AHAMEDABAD - 382421 BUT WRONGLY SHOWN IN ANNEXURES A7 AND A8 AS KARAN ADANI (SIC) ADANI VIZHINJAM PROJECTS PRIVATE LIMITED(SIC) ADANI HOUSE, VAISHNOVDEVI CIRCLE, SATHIGRAM, GUJARAT.

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3 GUDENA JAGANNADHA RAO, ADANI VIZHINJAM PORT PRIVATE LIMITED, ADANI CORPORATE HOUSE, SHANTIGRAM. NEAR VAISHNO DEVI CIRCLE, S.G. HIGHWAY, KHODIYA, AHAMEDABAD - 382421, BUT WRONGLY SHOWN IN ANNEXURES A7 AND A8 AS G.J. RAO, CEO (SIC), ADANI VIZHINJAM PROJECTS PRIVATE LIMITED (SIC), ADANI HOUSE, VAISHNOVDEVI CIRCLE, SANTHIGRAM, AHAMEDABAD - 4824, GUJARAT.

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4 CHIRAYU JITENDRA PANDYA, ADANI VIZHINJAM PORT PRIVATE LIMITED, ADANI CORPORATE HOUSE, SHANTIGRAM. NEAR VAISHNO DEVI CIRCLE, S.G. HIGHWAY, KHODIYA, AHAMEDABAD - 382421, BUT WRONGLY SHOWN IN ANNEXURES A7 AND A8 AS CHIRAYU PANDYA, TECHNICAL HEAD (SIC), ADANI VIZHINJAM PROJECT PRIVATE LIMITED (SIC), VAISHNOVDEVI CIRCLE, SANTHIGRAM, GUJARAT.

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Crl.MC.3800/2020 & Crl.MC.3806/2020

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BY ADVS. SRI.ROSHEN.D.ALEXANDER SMT.TINA ALEX THOMAS SHRI.HARIMOHAN

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RESPONDENTS/STATE & COMPLAINANT:

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1 STATE OF KERALA THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682031,

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2 MEGA TRADING CORPORATION HAVING ITS REGISTERED OFFICE AT DAS NAGAR, KUNNAPPUZHA, ARAMADA P.O.,THIRUVANANTHAPURAM. REPRESENTED BY MR. GIREESH PILLAI S/O. K.N. SIVASANKARA PILLAI, SIVA NIVAS, PAZHAVEEDU P.O., ALAPPUZHA, PIN-688 002.

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R1 BY DIRECTOR GENERAL OF PROSECUTION R1 BY ADV.SMT.M.N.MAYA, PUBLIC PROSECUTOR R2 BY ADV. SRI.SIBI THOMAS JACOB R2 BY ADV. SRI.V.P.REMESH R2 BY ADV. SRI.P.VIJAYA BHANU (SR.)

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11.01.2021, ALONG WITH Crl.MC.3800/2020(D), THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.3800/2020 & Crl.MC.3806/2020

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ORDER

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The petitioner in two Crl.M.Cs. viz., accused

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No.1 and accused No.3, 8, 4 and 6 came up to quash Annexure A9 complaint and Annexure A10 order taking cognizance for the offence under Section 420 r/w Section 34 IPC. What is alleged is based on the breach of contract and obligation arising out of it. It was contended that the defacto complainant agreed to supply rock boulders for the project of Vizhinjam International Sea Port and a letter of intent for supply of 84,00,000 MTS of rock boulders within 24 months was placed with the defacto complainant. It is alleged that defacto complainant accordingly arranged rock boulders to a considerable extent. They have also received part payment of Rs.2,75,00,000/- and Rs.1,85,00,000/-, totalling Rs.4,60,00,000/-. But subsequently, the contract was assigned to somebody else causing big loss to the complainant. The very nature of the

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complaint would prima facie show what is involved is a civil liability arising out of a concluded

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Crl.MC.3800/2020 & Crl.MC.3806/2020

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contract and its breach. The facts narrated and

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alleged would not constitute any delivery of property or detention of property either fraudulently or dishonestly under any deception or cause any damage by that means to the property or reputation of any person so as to attract the ingredient which would constitute 'cheating' as defined under Section 415 IPC. Hence it would be a

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futile exercise if it is proceeded further. The complaint and the order taking cognizance against the petitioners are hereby quashed.

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Crl.M.Cs. are allowed accordingly.

Sd/-

P.SOMARAJAN

JUDGE

SPV

Crl.MC.3800/2020 & Crl.MC.3806/2020

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APPENDIX OF Crl.MC 3800/2020

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PETITIONER'S/S EXHIBITS:

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ANNEXURE A1	TRUE COPY OF THE LETTER OF INTENT BEARING NO.HEPIPL/ROCKS/2782 DTD. 23/05/2017 FOR THE SUPPLY OF 22,00,000 MT ROCKS ISSUED BY THE PETITIONER TO THE COMPLAINANT.
ANNEXURE A2	TRUE COPY OF THE INVOICE FOR PAYMENT OF ADVANCE DTD. 28/06/2017 FOR AN AMOUNT OF RS.2,75,00,000 ISSUED BY THE COMPLAINANT TO THE PETITIONER.
ANNEXURE A2(A)	TRUE COPY OF THE INVOICE FOR PAYMENT OF ADVANCE DTD. 17/11/2017 FOR AN AMOUNT OF RS.1,00,00,000 ISSUED BY THE COMPLAINANT TO THE PETITIONER.
ANNEXURE A2(B)	TRUE COPY OF THE INVOICE FOR PAYMENT OF ADVANCE DTD. 02/06/2018 FOR AN AMOUNT OF RS.85,00,000 ISSUED BY THE COMPLAINANT TO THE PETITIONER.
ANNEXURE A3	TRUE COPY OF PLAINT IN O.S.NO.599/2020 ON THE FILES OF THE III ADDITIONAL MUNSIFF'S COURT, THIRUVANANTHAPURAM.
ANNEXURE A4	TRUE COPY OF SUMMONS ISSUED IN O.S.NO.599/2020 ON THE FILES OF III ADDITIONAL MUNSIFF COURT TO THE 2ND PETITIONER.
ANNEXURE A5	TRUE COPY OF THE INJUNCTION PETITION NUMBERED AS I.A.NO.1/2020.
ANNEXURE A6	TRUE COPY OF COUNTER AFFIDAVIT FILED BY THE PETITIONER HEREIN IN I.A.NO.1/2020.
ANNEXURE A7	TRUE COPY OF NEWS ITEM APPEARED ON 5TH AUGUST 2020 IN TIMES NEWS NETWORK.
ANNEXURE A8	TRUE COPY OF NOTE CIRCULATED AMONG MEDIA PERSONS.
ANNEXURE A9	TRUE COPY OF THE COMPLAINT DTD. 24/07/2019 WHICH WAS FILED AS CRL.M.P.NO.2101/2019 AND NUMBERED AS

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Crl.MC.3800/2020 & Crl.MC.3806/2020

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C.C.NO.331/2020 ON THE FILES OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM.

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ANNEXURE A10 TRUE COPY OF ORDER ISSUING PROCESS DTD. 18/03/2020 IN CRL.M.P.NO.4101/2019.

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RESPONDENS' EXHIBITS:

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ANNEXURE-R2A TRUE COPY OF THE PROCEEDINGS OF THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM I CC-331/2020

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ANNEXURE-R2B TRUE COPY OF THE STATEMENT OF THE COMPLAINANT RECORDED BY THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM

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ANNEXURE-R2C TRUE COPY OF THE STATEMENT OF THE WITNESS RECORDED BY THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM.

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ANNEXURE-R2D TRUE COPY OF THE LOI SIGNED BY THE 2^ND RESPONDENT AND THE HOWE ENGINEERING PROJECTS INDIA PRIVATE LIMITED DATED 23/05/2017.

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ANNEXURE-R2E TRUE COPY OF THE 2^ND LOI SIGNED BY THE 2^ND RESPONDENT AND THE HOWE ENGINEERING PROJECTS INDIA PRIVATE LIMITED DATED 23/05/2017

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ANNEXURE-R2F TRUE COPY OF THE LOI DATED 23/05/2017 FOR COLLECTION OF ROCK BOULDERS FROM THENGAPATTANAM.

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ANNEXURE-R2G TRUE COPY OF THE CERTIFICATE OF AUTHORIZATION DATED 23/05/2017 ISSUED TO THE MANAGING PARTNER OF THE 2^ND RESPONDENT/COMPLAINANT AUTHORIZING HIM TO LAISON THE ENTIRE PROJECT ISSUED BY THE FIRST PETITIONER/ACCUSED.

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Crl.MC.3800/2020 & Crl.MC.3806/2020

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ANNEXURE-R2H TRUE COPIES OF THE INVOICES DATED 28/06/2017, 17/11/2017 AND 02/06/2018.

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ANNEXURE-R2I

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TRUE COPY OF THE LOI DATED 12/12/2019 ENTERED INTO BETWEEN THE PAMBADY STONES AND COMMODITIES (P) LTD AND HOWE ENGINEERING PROJECTS INDIA PRIVATE LTD.

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Crl.MC.3800/2020 & Crl.MC.3806/2020

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APPENDIX OF Crl.MC 3806/2020

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PETITIONER'S/S EXHIBITS:

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ANNEXURE A1 TRUE COPY OF PLAINT IN OS NO. 599/2020 ON THE FILES OF THE III ADDITIONAL MUNSIFF'S COURT, THIRUVANANTHAPURAM.

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ANNEXURE A2	TRUE COPY OF SUMMONS ISSUED IN OS NO.599/2020 ON THE FILES OF III ADDITIONAL MUNSIFF'S COURT TO THE 2ND PETITIONER.
ANNEXURE A3	TRUE COPY OF THE INJUNCTION PETITION NUMBERED AS IA NO.1/2020.
ANNEXURE A4	TRUE COPY OF COUNTER AFFIDAVIT FILED BY HOWE, THE 1ST ACCUSED IN IA NO.1/2020.
ANNEXURE A5	TRUE COPY OF NEWS ITEM APPEARED ON 5TH AUGUST 2020 IN TIMES NEWS NETWORK.
ANNEXURE A6	TRUE COPY OF NOTE CIRCULATED AMONG MEDIA PERSONS.
ANNEXURE A7	CERTIFIED COPY OF THE COMPLAINT DATED 24.07.2019 WHICH WAS FILED AS CRL.M.P. NO.2101/2019 AND NUMBERED AS CC NO.331/2020 ON THE FILES OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM.
ANNEXURE A8	TRUE COPY OF ORDER ISSUING PROCESS DATED 18.03.2020 IN CRL.M.P. NO.4101/2019.

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RESPONDENS' EXHIBITS:

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ANNEXURE-R2A	CERTIFIED COPY OF THE PROCEEDINGS OF THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM I CC-331/2020
ANNEXURE-R2B	CERTIFIED COPY OF THE STATEMENT OF THE COMPLAINANT RECORDED BY THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM
ANNEXURE-R2C	CERTIFIED COPY OF THE STATEMENT OF THE WITNESS RECORDED BY THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT,

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Crl.MC.3800/2020 & Crl.MC.3806/2020

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THIRUVANANTHAPURAM.

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ANNEXURE-R2D TRUE COY OF THE LOI SIGNED BY THE 2^ND RESPONDENT AND THE HOWE ENGINEERING PROJECTS INDIA PRIVATE LIMITED DATED 23/05/2017. ANNEXURE-R2E TRUE COPY OF THE 2^ND LOI SIGNED BY THE 2^ND RESPONDENT AND THE HOWE ENGINEERING PROJECTS INDIA PRIVATE LIMITED DATED 23/05/2017 ANNEXURE-R2F TRUE COPY OF THE LOI DATED 23/05/2017 FOR COLLECTION OF ROCK BOULDERS FROM THENGAPATTANAM. ANNEXURE-R2G TRUE COPY OF THE CERTIFICATE OF AUTHORIZATION DATED 23/05/2017 ISSUED TO THE MANAGING PARTNER OF THE 2^ND RESPONDENT/COMPLAINANT AUTHORIZING HIM TO LAISON THE ENTIRE PROJECT ISSUED BY THE FIRST PETITIONER/ACCUSED. ANNEXURE-R2H TRUE COPIES OF THE INVOICES DATED 28/06/2017, 17/11/2017 AND 02/06/2018. ANNEXURE-R2I TRUE COPY OF THE LOI DATED 12/12/2019 ENTERED INTO BETWEEN THE PAMBADY STONES AND COMMODITIES (P) LTD AND HOWE ENGINEERING PROJECTS INDIA PRIVATE LTD.

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//TRUE COPY//

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PA TO JUDGE

Adani Vizhinjam Port Pvt. Ltd. v. State of Kerala

Case brief

What is this about?

What did the court decide?

Adani Vizhinjam Port Pvt. Ltd. v. State of Kerala

Case brief

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What did the court decide?

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