Allowed

M/S.Naveena Narmada Shopping Complex v. M/S.Narmada Consumer Stores Pvt. Ltd.

Kerala HC25 Jan 2022FAO (RO)/353/2013

Case brief

AI extract

What is this about?

The High Court allowed appeals against a first appellate court order remanding three suits for arbitration. The court held that referring disputes to arbitration after parties proceeded fully in suit to trial and obtained a common decree is impermissible given the conduct amounting to waiver and estoppel.

What did the court decide?

The order of remand passed by the first appellate court is set aside. All the appeals are allowed. Parties shall appear before the first appellate court on 10/2/2022 for disposal within three months.

M/S.Naveena Narmada Shopping Complex Vs M/S.Narmada Consumer… — Arbitration | Kerala HC (2022)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE P.SOMARAJAN

¶4

TUESDAY, THE 25TH DAY OF JANUARY 2022 / 5TH MAGHA, 1943

¶5

FAO (RO) NO. 353 OF 2013

¶6

AGAINST THE JUDGMENT AND DECREE DATED 22/06/2013 IN AS 170/2009 OF III ADDITIONAL DISTRICT COURT,THIRUVANANTHAPURAM

¶7

AGAINST THE JUDGMENT AND DECREE DATED 28/11/2008 IN OS 2370/1998 OF
ADDITIONAL MUNSIFF COURT (R.C.C.),THIRUVANANTHAPURAM

¶8

APPELLANTS/RESPONDENTS 1,4 & 5/DEFENDANTS 1,4 & 5:

¶9

1 M/S.NAVEENA NARMADA SHOPPING COMPLEX, KOWDIAR, THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING PARTNER, SRI. V.K. SUBRAMONIAM, AGED 77 YEARS, S/O V.K. KONAKUTTY, RESIDING AT VAZHAPPALLY, T.C 4/10(1), KOWDIAR P.O, THIRUVANANTHAPURAM

¶10

2 M/S. PALACE HEIGHTS, NARMADA SHOPPING COMPLEX, KOWDIAR, THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING PARTNER, K. SASIDHARAN, AGED 64 YEARS, S/O LATE K. KUNJAN, RESIDING AT PILAVILA VEEDU, KADUVAKUZHIKAD, MITHRIMALA, THIRUVANANTHAPURAM.

¶11

3 M/S. NARDAMA TAILORING AND EMBROIDERY INSTITUTE, NARMADA SHOPPING COMPLEX, KOWDIAR, THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING PARTNER.

¶12

BY ADVS.SRI.M.R.ANANDAKUTTAN
SRI.MAHESH ANANDAKUTTAN
SMT.M.A.ZOHRA

¶13

RESPONDENT/APPELLANT/PLAINTIFF & DEFENDANTS 2 & 3:

¶14

1 M/S.NARMADA CONSUMER STORES PVT. LTD., KOWDIAR, THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING DIRECTOR, DR.K. BALARAMAN, NARMADA CONSUMER STORES (P) LTD., NARMADA SHOPPING COMPLEX, KOWDIAR, THIRUVANANTHAPURAM -695003

¶15

2 M/S. COLLECTIONS VIDEO CENTRE, NARMADA SHOPPING COMPLEX, KOWDIAR, THIRUVANANTHAPURAM,

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[FAO (RO) Nos.353/2013,

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350/2013, 5/2014] 2

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REPRESENTED BY ITS PROPRIETOR, HARIPRASAD, S/O K.
PRABHAKARAN, AGED 43 YEARS. 695003

¶19

3 M/S. LIVE IN STYLE, NARMADA SHOPPING COMPLEX, KOWDIAR, THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING PARTNER SRI C.V. SUJAI, AGED 37 YEARS, S/O C.N. VIJAYAN, RESIDING AT T.C 11/650(2) ROHINI, VAYAL ROAD, THIRUVANANTHAPURAM- 695003

¶20

BY ADVS.SRI.HARISH GOPINATH
SRI.R.S.KALKURA
SRI.M.S.KALESH
SMT.A.V.PRIYA

¶21

THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR
HEARING ON 25.01.2022, ALONG WITH FAO (RO).350/2013, 5/2014, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶22

[FAO (RO) Nos.353/2013,

¶23

350/2013, 5/2014] 3

¶24

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶25

PRESENT

¶26

THE HONOURABLE MR. JUSTICE P.SOMARAJAN

¶27

TUESDAY, THE 25TH DAY OF JANUARY 2022 / 5TH MAGHA, 1943

¶28

FAO (RO) NO. 350 OF 2013

¶29

AGAINST THE JUDGMENT AND DECREE DATED 22/06/2013 IN AS 168/2009 OF
III ADDITIONAL DISTRICT COURT, THIRUVANANTHAPURAM

¶30

AGAINST THE JUDGMENT AND DECREE DATED 28/11/2008 IN OS 1830/1998 OF
ADDITIONAL MUNSIFF COURT (R.C.C), THIRUVANANTHAPURAM
APPELLANTS/RESPONDENTS/PLAINTIFFS:

¶31

1M/S. NAVEENA NARMADA SHOPPING COMPLEX,
KOWDIAR, THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING
PARTNER, SRI.V.K. SUBRAMONIAM, AGED 77 YEARS, S/O V.K.
KONAKUTTY, RESIDING AT VAZHAPPALLY, T.C 4/10(1) KOWDIAR
P.O, THIRUVANANTHAPURAM

¶32

2M/S. NARMADA TAILORING AND EMBROIDERY INSTITUTE,
NARMADA SHOPPING COMPLEX, KOWDIAR,
THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING PARTNER,
SRI.V.K. SUBRAMONIAM, S/O V.K. KONAKUTTY,
RESIDING AT VAZHAPPALLY,
T.C 4/10(1) KOWDIAR P.O, THIRUVANANTHAPURAM

¶33

3 V.K. SUBRAMONIAM, AGED 77 YEARS, MANAGING PARTNER, M/S NAVEENA NARMADA SHOPPING COMPLEX, KOWDIAR, THIRUVANANTHAPURAM

¶34

4 M/S PALACE HEIGHTS, NARMADA SHOPPING COMPLEX, KOWDIAR, THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING PARTNER K. SASIDHARAN, AGED 64 YEARS, S/O LATE K. KUNJAN, RESIDING AT PILAVILA VEEDU, KADUVAKUZHIKAMD, MITHRIMALA, THIRUVANANTHAPURAM

¶35

BY ADVS.SRI.M.R.ANANDAKUTTAN
SRI.MAHESH ANANDAKUTTAN
SMT.M.A.ZOHRA

¶36

[FAO (RO) Nos.353/2013,

¶37

350/2013, 5/2014] 4

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RESPONDENT/APPELLANT/RESPONDENTS 4 & 5/DEFENDANT & PLAINTIFFS 4 &5:

¶39

1 M/S. NARMADA CONSUMER STORES PVT. LTD., KOWDIAR, THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING DIRECTOR, DR K. BALARAMAN, AGED 52 YEARS, NARMADA CONSUMERS STORES (P) LTD, NARMADA SHOPPING COMPLEX, KOWDIAR, THIRUVANANTHAPURAM 695003

¶40

2 M/S. LIVE IN STYLE, NARMADA SHOPPING COMPLEX, KOWDIAR, THIRUVANANTHAPURAM REPRESENTED BY ITS MANAGING PARTNER SRI C.V. SUJAI, S/O C.N. VIJAYAN, RESIDING AT T.C 11/650(2) ROHINI, VAYAL ROAD, THIRUVANANTHAPURAM 695003

¶41

3 C.V. BIJAY, AGED 42 YEARS, S/O C.N. VIJAYAN, RESIDING AT T.C 11/650(2), ROHINI, VAYAL ROAD, THIRUVANANTHAPURAM 695003

¶42

BY ADVS.SMT.R.BINDU
SRI.HARISH GOPINATH
SRI.M.S.KALESH
SMT.A.V.PRIYA
SRI.SANIL KUNJACHAN

¶43

THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR
HEARING ON 25.01.2022, ALONG WITH FAO (RO).353/2013 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶44

[FAO (RO) Nos.353/2013,

¶45

350/2013, 5/2014] 5

¶46

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶47

PRESENT

¶48

THE HONOURABLE MR. JUSTICE P.SOMARAJAN

¶49

TUESDAY, THE 25TH DAY OF JANUARY 2022 / 5TH MAGHA, 1943

¶50

FAO (RO) NO. 5 OF 2014

¶51

AGAINST THE JUDGMENT AND DECREE DATED 22/06/2013 IN AS 169/2009 OF
III ADDITIONAL DISTRICT COURT,THIRUVANANTHAPURAM

¶52

AGAINST THE JUDGMENT AND DECREE DATED 28/11/2008 IN OS 1838/1998 OF

¶53

ADDITIONAL MUNSIFF (R.C.C.) COURT,THIRUVANANTHAPURAM

¶54

APPELLANTS (RESPONDENTS 1,2 & 4 TO 6/PLAINTIFFS 1,2 & 4 TO 6:

¶55

1 M/S. B.K. ENTERPRISES,NARMADA SHOPPING COMPLEX, KOWDIAR, THIRUVANANTHAPURAM REPRESENTED BY ITS PROPRIETOR, B.K SREEDHAR,AGED 56 YEARS.

¶56

2 M/S.DEVI ENTERPRISES, NARMADA SHOPPING COMPLEX, KOWDIAR, THIRUVANANTHAPURAM, REPRESENTED BY ITS PROPRIETOR B RAMKUMAR, S/O.N.S.BHAIRAVAN

¶57

3 M/S.NARMADA GIFTS,NARMADA SHOPPING COMPLEX, KOWDIAR, THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING PARTNER P.O TITUS,AGED 77 YEARS, S/O.LATE OOMMEN

¶58

4 P.O TITUS, AGED 77 YEARS, S/O.LATE P.G OOMMEN,MANAGING PARTNER, M/S.NARMADA GITS, NARMADA SHOPPING COMPLEX, KOWDIAR,THIRUVANANTHAPURAM

¶59

5 M/S.KARTHIK PIPES, NARMADA SHOPPING COMPLEX, KOWDIAR, THIRUVANANTHAPURAM, REPRESENTED BY ITS PROPRIETOR, G. RAJAGOPAL,AGED 57 YEARS, S/O.LATE N GOPALAN BY ADVS. SRI.M.R.ANANDAKUTTAN SRI.MAHESH ANANDAKUTTAN SMT.M.A.ZOHRA

¶60

RESPONDENT/APPELLANT & 3RD RESPONDENT/DEFENDANT & 3RD PLAINTIFF:

¶61

1M/S. NARMADA BUILDING ENTERPRISES (P) LTD.,
KOWDIAR,THIRUVANANTHAPURAM REPRESENTED BY ITS MANAGING

¶62

[FAO (RO) Nos.353/2013,

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350/2013, 5/2014] 6

¶64

DIRECTOR DR. K. BALARAMAN, NARMADA BUILDING,
ENTERPRISES(P)LTD, NARMADA SHOPPING COMPLEX,KOWDIAR,
THIRUVANANTHAPURAM-695003

¶65

2M/S.AJAN ENTERPRISES,NARMADA SHOPPING
COMPLEX,KOWDIAR,THIRUVANANTHAPURAM,REPRESENTED BY ITS
PROPRIETRESS SMT K KISHNAKUMARI, AGED 57 YEARS,
W/O. T CHANDRAN – 695 003

¶66

BY ADVS.
SMT.R.BINDU
SRI.HARISH GOPINATH
SRI.JOHNSON JOSE PANJIKKARAN
SRI.R.S.KALKURA
SRI.M.S.KALESH
SMT.A.V.PRIYA

¶67

THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR
HEARING ON 25.01.2022, ALONG WITH FAO (RO).353/2013 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶68

[FAO (RO) Nos.353/2013,
350/2013, 5/2014] 7

¶69

JUDGMENT

¶70

These are the three appeals preferred against the order

¶71

of remand by the first appellate court by setting aside the
common decree and judgment rendered by the trial court in
four different suits. It seems to be so strange that the
decree and judgment of the trial court in all these four
suits were set aside by the first appellate court, for the
purpose of enabling the parties to exhaust the remedy of
arbitration based on the arbitration clause incorporated in
the agreement entered into by the parties, that too
overlooking the impact of Section 8 of the Arbitration and
Conciliation Act, 1996 and also the conduct of parties in
proceeding with the suit by submitting their written
statement joining with the trial of the suit by adducing
evidence and thereby submitted to the jurisdiction of the
Civil Court. It was culminated in a common decree and
judgment. The estoppel by conduct and principle of waiver
was not seen properly considered or taken up by the first
appellate court. After the submission to the jurisdiction

¶72

[FAO (RO) Nos.353/2013,
350/2013, 5/2014] 8

¶73

of the Civil Court overlooking the arbitration clause and
by proceeding with the suit fully knowing the dispute, it
is neither permissible nor advisable to refer the matter
for arbitration after the culmination of the suit matter in
the trial court by way of decree and judgment. The order
of remand passed by the first appellate court is not
sustainable and is liable to be set aside on that sole
ground. I do so. The first appellate court shall hear both
the parties in accordance with the mandate and to dispose
of the appeal by attending all the questions on merits, for
which the parties shall appear before the first appellate
court on 10/2/2022. It shall be disposed of within a time
schedule of three months from the date of appearance of the
parties.

¶74

All the appeals are allowed accordingly. No costs.

Sd/-

P.SOMARAJAN

JUDGE

msp

[FAO (RO) Nos.353/2013, 350/2013, 5/2014] 9

¶80

APPENDIX OF FAO(RO) NO.353/2013

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PETITIONER ANNEXURES: NIL

¶82

`RESPONDENTS ANNEXU` `ANNEXURE-R1(A)` `ANNEXURE R1(B)` `ANNEXURE R1(C)`	`RES:` `TRUE COPY OF THE` `10.01.2022 ISSUED` `DEATHS, CORPORATI` `TRUE COPY OF THE` `IN KERALA KAUMUDI` `TRUE COPY OF THE` `30.08.2013 EXECUT` `FAVOUR OF THE 1ST` `LICENCE.`	`DEATH CERTIFICATE DATED` `BY THE REGISTRAR OF BIRTHS &` `ON OF THIRUVANANTHAPURAM` `PAPER PUBLICATION APPEARING` `DATED 05.05.2017` `COMPROMISE AGREEMENT DATED` `ED BY THE 2ND RESPONDENT IN` `RESPONDENT TERMINATING THE`
`ANNEXURE R1(D)`	`TRUE COPY OF THE` `01.04.1996 ENTERE` `RESPONDENT AND M/` `SHOPPING COMPLEX.`	`LICENCE AGREEMENT DATED` `D INTO BETWEEN THE 1ST` `S PALACE HEIGHTS NARMADA`
`ANNEXUR R1(E)` `ANNEXURE R1(F)`	`TRUE COPY OF THE` `28.11.2008 IN O.S` `1830 OF 1998 AND` `THE RENT CONTROL` `TRUE COPY OF THE` `C.P.NO.101 OF 199` `ON THE FILE OF TH` `PRINCIPAL BENCH,`	`COMMON JUDGMENT DATED` `.2354 OF 1998, 2370 OF 1998,` `1838 OF 1998 ON THE FILE OF` `COURT, THIRUVANANTHAPURAM` `ORDER DATED 11.11.2003 IN` `9 AGAINST THE 1ST RESPONDENT` `E COMPANY LAW BOARD,` `NEW DELHI`
`ANNXURE R1(G)` `ANNEXURE R1(H)`	`TRUE COPY OF THE` `C.P.NO.100 OF 199` `OF THE 1ST RESPON` `COMPANY LAW BOARD` `TRUE COPY OF THE` `PASSED BY THE DIV` `COURT IN COMPANY`	`ORDER DATED 11.11.2003 IN` `9 AGAINST THE SISTER COMPANY` `DENT ON THE FILE OF THE` `, PRINCIPAL BENCH, NEW DELHI` `JUDGMENT DATED 8.3.2013` `ISION BENCH OF THIS HON’BLE` `APPEAL 11 OF 2004`
`ANNEXURE R1(I)` `ANNEXURE R1(J)`	`TRUE COPY OF THE` `PASSED BY THE DIV` `COURT IN COMPANY` `TRUE COPY OF THE` `22.06.2013 IN A.S` `2009, A.S.170 OF` `BEFORE THE ADDITI` `THIRUVANANTHAPURA`	`JUDGMNET DATED 8.3.2013` `ISION BENCH OF THIS HON’BLE` `APPEAL 12 OF 2004` `COMMON JUDGMENT DATED` `.168 OF 2009 AND A.S.169 OF` `2009 AND A.S.184 OF 2009` `ONAL DISTRICT JUDGE – III,` `M`

¶83

[FAO (RO) Nos.353/2013,

¶84

350/2013, 5/2014] 10

¶85

APPENDIX OF FAO(RO) NO.350/2013

¶86

PETITIONER ANNEXURES: NIL

¶87

`RESPONDENTS ANNEXU`	`RES:`
`ANNEXURE-R1(A)`	`TRUE COPY` `THE REGIST` `OF THIRUVA`	`OF THE` `RAR OF` `NANTHAP`	`DEATH CERTIFICATE ISSUED BY` `BIRTHS & DEATHS, CORPORATION` `URAM`
`ANNEXURE R1(B)`	`TRUE COPY` `IN KERALA`	`OF THE` `KAUMUDI`	`PAPER PUBLICATION APPEARING` `DATED 05.05.2017`
`ANNEXURE R1(C)`	`TRUE COPY` `01.04.1996` `RESPONDENT` `SHOPPING C`	`OF THE` `ENTERE` `AND M/` `OMPLEX`	`LICENCE AGREEMENT DATED` `D INTO BETWEEN THE 1ST` `S. PALACE HEIGHTS NARMADA`
`ANNEXURE R1(D)` `ANNEXUR R1(E)`	`TRUE COPY` `28.11.2008` `1830 OF 19` `THE RENT C` `TRUE COPY` `C.P.NO.101` `ON THE FIL` `PRINCIPAL`	`OF THE` `IN O.S` `98 AND` `ONTROL` `OF THE` `OF 199` `E OF TH` `BENCH,`	`COMMON JUDGMENT DATED` `.2354 OF 1998, 2370 OF 1998,` `1838 OF 1998 ON THE FILE OF` `COURT, THIRUVANANTHPURAM` `ORDER DATED 11.11.2003 IN` `9 AGAINST THE 1ST RESPONDENT` `E COMPANY LAW BOARD,` `NEW DELHI`
`ANNEXURE R1(F)` `ANNXURE R1(G)`	`TRUE COPY` `C.P.NO.100` `OF THE 1ST` `COMPANY LA` `TRUE COPY` `PASSED BY` `COURT IN C`	`OF THE` `OF 199` `RESPON` `W BOARD` `OF THE` `THE DIV` `OMPANY`	`ORDER DATED 11.11.2003 IN` `9 AGAINST THE SISTER COMPANY` `DENT ON THE FILE OF THE` `, PRINCIPAL BENCH, NEW DELHI` `JUDGMENT DATED 8.3.2013` `ISION BENCH OF THIS HON’BLE` `APPEAL 11 OF 2004`
`ANNEXURE R1(H)`	`TRUE COPY` `PASSED BY` `COURT IN C`	`OF THE` `THE DIV` `OMPANY`	`JUDGMNET DATED 8.3.2013` `ISION BENCH OF THIS HON’BLE` `APPEAL 12 OF 2004`
`ANNEXURE R1(I)`	`TRUE COPY` `22.06.2013` `2009, A.S.` `BEFORE THE` `THIRUVANAN`	`OF THE` `IN A.S` `170 OF` `ADDITI` `THAPURA`	`COMMON JUDGMENT DATED` `.168 OF 2009 AND A.S.169 OF` `2009 AND A.S.184 OF 2009` `ONAL DISTRICT JUDGE – III,` `M`

¶88

[FAO (RO) Nos.353/2013,

¶89

350/2013, 5/2014] 11

¶90

APPENDIX OF FAO(RO) NO.5/2014

¶91

PETITIONER ANNEXURES: NIL

¶92

`RESPONDENTS ANNEXU` `ANNEXURE-R1(A)` `ANNEXURE R1(B)`	`RES:` `TRUE COPY OF THE COMPROMISE AGREEMENT DATED` `21.07.2017 ENTERED INTO BETWEEN THE 1ST` `RESPONDENT AND M/S.NARMADA GIFTS` `TRUE COPY OF THE COMPROMISE DEED DATED` `01.07.2013 ENTERED INTO BETWEEN THE 1ST` `RESPONDENT AND M/S.AJAN ENTERPRISES` `REPRESENTED BY ITS PROPRIETRESS SMT.KRISHNA` `KUMARI`
`ANNEXURE R1(C)`	`TRUE COPY OF THE LICENCE AGREEMENT DATED` `01.04.1996 ENTERED INTO BETWEEN THE 1ST` `RESPONDENT AND M/S. B.K.ENTERPRISES`
`ANNEXURE R1(D)`	`TRUE COPY OF THE COMMON JUDGMENT DATED` `28.11.2008 IN O.S.2354 OF 1998, 2370 OF 1998,` `1830 OF 1998 AND 1838 OF 1998 ON THE FILE OF` `THE RENT CONTROL COURT, THIRUVANANTHPURAM`
`ANNEXUR R1(E)`	`TRUE COPY OF THE ORDER DATED 11.11.2003 IN` `C.P.NO.100 OF 1999 AGAINST THE 1ST RESPONDENT` `ON THE FILE OF THE COMPANY LAW BOARD,` `PRINCIPAL BENCH, NEW DELHI`
`ANNEXURE R1(F)` `ANNXURE R1(G)`	`TRUE COPY OF THE ORDER DATED 11.11.2003 IN` `C.P.NO.101 OF 1999 AGAINST THE SISTER COMPANY` `OF THE 1ST RESPONDENT ON THE FILE OF THE` `COMPANY LAW BOARD, PRINCIPAL BENCH, NEW DELHI.` `TRUE COPY OF THE JUDGMENT DATED 8.3.2013` `PASSED BY THE DIVISION BENCH OF THIS HON’BLE` `COURT IN COMPANY APPEAL 11 OF 2004`
`ANNEXURE R1(H)`	`TRUE COPY OF THE JUDGMNET DATED 8.3.2013` `PASSED BY THE DIVISION BENCH OF THIS HON’BLE` `COURT IN COMPANY APPEAL 12 OF 2004`
`ANNEXURE R1(I)`	`TRUE COPY OF THE COMMON JUDGMENT DATED` `22.06.2013 IN A.S.168 OF 2009 AND A.S.169 OF` `2009, A.S.170 OF 2009 AND A.S.184 OF 2009` `BEFORE THE ADDITIONAL DISTRICT JUDGE – III,` `THIRUVANANTHAPURAM`

M/S.Naveena Narmada Shopping Complex v. M/S.Narmada Consumer Stores Pvt. Ltd.

Case brief

What is this about?

What did the court decide?

M/S.Naveena Narmada Shopping Complex v. M/S.Narmada Consumer Stores Pvt. Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

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