1

BEFORE THE HONOURABLE VACATION COURT AT

ERNAKULAM
(TO BE FILED BEFORE THE HON’BLE MUNSIFF’S
COURT AT ERNAKULAM)

O.S. No. of 2019

M/s. Imperium Engineers : Plaintiff

Vs.
Kochi Biennale Foundation : Defendant
Represented by its Secretary

PLAINT FILED UNDER ORDER VII RULE I READ WITH

SECTION 26 OF CODE OF CIVIL PROCEDURE

A] Name and address of the plaintiff:-

M/s. Imperium Engineers,
38/2819 A, CBI Road, Kathrikadavu,
Kochi, Kerala - 682017
represented by its authorised signatory _____.

Address for service of notices etc., to the Plaintiff is that of their

Counsel, M/s. Santhosh Mathew, Arun Thomas, Jennis Stephen,
Vijay V. Paul, Karthika Maria, Veena Raveendran, Anil
Sebastian Pulickel, Divya Sara George & Jaisy Elza Joe, M/s.
Ninan & Mathew Advocates, S1, 2nd Floor, Empire buildings,
High Court East End, Cochin-18.

B] Name & address of the defendant:-

1. Kochi Biennale Foundation

1/1903, Kunnumpuram, Fort Kochi PO,
Kochi, Kerala – 682001
Represented by its Secretary

(Summons etc., to the Defendant may be served on it at its addresses

mentioned above or on its counsel in case it chooses to engage one.)
 2

SUIT FOR PERMANENT PROHIBITORY INJUNCTION

1. The plaintiff is a supplier of electrical

equipment and appliances.

2. The defendant is a foundation registered as a

trust. It describes itself as a non-profit charitable trust
engaged in promoting art and culture and educational
activities in India. Its main function is to organise the
Kochi-Muziris Biennale. The fourth edition of the event -
Kochi-Muziris Biennale 2018 - recently concluded on
29-03-2019 after having commenced on 12-12-2018.
The Kochi-Muziris Biennale was conducted across
several venues, including Cabral Yard and Aspinwall
House.

3. It is submitted that the plaintiff was selected

by the defendant for supplying and installing the Air
Conditioners at Cabral Yard and Aspinwall House for the
Kochi-Muziris Biennale 2018.

4. As per Purchase Order dated 12-11-2018, the

defendant accepted the quotation of the plaintiff for the
supply of twenty Air Conditioners, to be installed at
Cabral Yard, at a cost of Rs. 25,00,000/-. The said
Purchase Order also stated that an advance payment of
Rs. 17,04,000/- plus Rs. 4,00,000/- from the low side
works will be paid and the remaining amount would be
paid on satisfactory completion of the work.

5. As per Purchase Order dated 26-11-2018, the

defendant accepted the quotation of the plaintiff for the
supply of seven Air Conditioners, to be installed at
Aspinwall House, at a cost of Rs. 8,79,340/-. The said
Purchase Order also stated that an advance payment of
Rs. 8,00,000/- would be paid and the remaining
 3

amount would be paid on the satisfactory completion of

the work.

6. It is submitted that in accordance with the

two Purchase Orders, the plaintiff supplied and installed
the Air Conditioners for the Kochi-Muziris Biennale
2018.

7. It is submitted that a perusal of the ledger

account between the plaintiff and the defendant would
reveal that while a total of Rs. 34,25,735/- was due
from the defendant to the plaintiff, only an amount of
Rs. 31,33,000/- has been paid so far. Thus, an amount
of Rs. 2,92,735/- continues to remain unpaid and due
from the defendant to the plaintiff. Thus, the entirety of
the materials supplied and installed by the plaintiff has
not been paid for by the defendant.

8. It is submitted that despite repeated

reminders and requests, the defendant has not been
willing to pay the balance amount that is due to the
plaintiff.

9. It is submitted that the defendant has now

issued an auction notice dated 10-04-2019 wherein it
has proposed to conduct an auction of the Air
Conditioners supplied by the plaintiff on 25-04-2019.
The defendant is thus proposing to auction Air
Conditioners for which it has not itself paid fully. The
same would affect the rights of the plaintiff who has not
been paid its dues completely for the supply and
installation of the Air Conditioners for Kochi-Muziris
Biennale 2018.

10. It is submitted that when the plaintiff came

to know about the auction, it submitted a complaint
dated 13-04-2019 to the Sub Inspector of the Fort
 4

Kochi Police Station. [Explanation for different amounts

shown as due in the complaint]. The plaintiff in the said
complaint has described how the defendant would
refuse to answer the plaintiff’s calls, or would some
times answer the phone calls and just state that the
due amount would be paid later.

11. It is submitted that the installation of the Air

Conditioners was a complex and delicate work of
engineering. Apart from the Air Conditioner units
themselves, there is one main outdoor unit at both
Cabral Yard and Aspinwall House, to which the Air
Conditioner units are connected. These connections are
concealed in trenches and pipes in the structures of the
buildings at the two locations. Apart from these
connections, there are many copper pipes carrying
gas, electrical cables etc. to the Air Conditioner units,
which are concealed underground. It is submitted that
if the auction is allowed to proceed, then the person or
entity selected through that auction would be expected
to dismantle and remove the Air Conditioner units from
the two locations without any knowledge about these
underlying connections. This is likely to cause damage
worth lakhs of rupees to the Air Conditioner units and
the underlying network of connections. Given that the
Air Conditioners supplied by the plaintiff have not yet
been paid for fully, the defendant ought not to be
allowed to take any such action that would be likely to
damage the equipment and erode its value
significantly.

12. It is submitted that had the Air Conditioners

been paid for fully, the defendant would have been at
full liberty to dispose of the equipment in the manner it
saw fit. However, since the payment for the same is
not yet complete, despite repeated reminders, the
defendant has a duty to refrain from any action that
 5

would affect the value of the goods supplied by the

plaintiff. This is particularly so as the defendant is a
recipient of public funds and therefore has a duty to
prevent unnecessary wastage of equipment, when it
has not yet paid for the same.

13. It is submitted that it has been widely

reported in the media that several contractors,
vendors, and workers have claimed that they have not
been paid their dues by the defendant for the Kochi-
Muziris Biennale 2018, have criticised the organisation
of the event, and have threatened legal action against
the defendant. It is submitted that the action of the
defendant in proposing to conduct the auction of goods
that it has not paid for appears to be a hasty step to
conclude the matters relating to Kochi-Muziris Biennale
2018 in an attempt to prevent further public attention
to its management of the Kochi-Muziris Biennale 2018.
However, the same would cause grave prejudice to the
plaintiff since it is the plaintiff who has supplied the Air
Conditioners and has not yet been fully paid for it.

14. In the light of the aforesaid facts and

circumstances of the case, the plaintiff is left with no
option other than to approach this Hon’ble Court for
equitable reliefs against the defendant restraining it
from proceeding with the auction of the Air
Conditioners for which it has not yet paid the plaintiff.
The plaintiff has got no other equally efficacious
remedy for redressal of his grievance.

15. The above stated facts constitute the cause

of action for this suit which arose on 10-04-2019, when
the defendant issued the notice for the auction to be
conducted in Kochi, which is within the territorial
jurisdiction of this Honourable Court.
 6

VALUATION

16. For the decree of Permanent Prohibitory Injunction

– Rs 500/-
The requisite court fee of Rs 20/- is paid herewith
under Section 27(c) of the Kerala Court Fees and Suits
Valuation Act and the Legal Benefit Fund of Rs 100/- is
also paid.

17. Therefore, it is respectfully prayed that this Hon’ble

Court may be pleased to pass a decree and judgement
in favour of the plaintiff granting the following reliefs.

RELIEFS
A) The defendant or anybody under it may be
restrained by a decree of permanent prohibitory
injunction from proceeding with the auction of Air
Conditioners as notified in the notice dated 10-04-
2019.
B) In the alternative, the defendant may be
directed to set aside and pay the amount of Rs.
2,92,735/- being the balance amount due to the
plaintiff from the proceeds of the auction of Air
Conditioners as notified in the notice dated 10-04-2019
C) Allowing the plaintiff to realize the cost of
the proceedings from the defendant and its assets.
D) Granting such other and further relief that
are deemed fit to be granted in the facts and
circumstances and evidences of the case.

18.LIST OF DOCUMENTS

1. Photocopy of Purchase Order dated 12-11-

2018
2. Photocopy of Purchase Order dated 26-11-
2018
 7

3. Photocopy of the Ledger Account details for

the period 01-11-2018 to 31-03-2019 for the account
between Imperium Engineers and Kochi Biennale
Foundation
4. Photocopy of the Auction Notice dated 10-04-
2019.
5. Photocopy of the complaint dated 13-04-
2019 submitted by Mr. Prashanth G to the Sub
Inspector of Fort Kochi Police Station

Dated this the 22nd day of April 2019

Plaintiff: _____
Counsel for the Plaintiff
VERIFICATION

I, _____, _____ of M/s. Imperium Engineers, 38/2819

A, CBI Road, Kathrikadavu, Kochi, Kerala - 682017, do
hereby declare that all the facts and pleadings stated
above are true and correct to the best of my
knowledge, information and belief.

Dated this the 22nd day of April 2019

Plaintiff: _____
 8

BEFORE THE HONOURABLE VACATION COURT AT

ERNAKULAM
(TO BE FILED BEFORE THE HON’BLE MUNSIFF’S
COURT AT ERNAKULAM)

O.S. No. of 2019

M/s. Imperium Engineers : Petitioner/Plaintiff

Vs.
Kochi Biennale Foundation : Counter
Represented by its Secretary Petitioner/
Defendant

AFFIDAVIT

I, _____, son of _____, aged __ years, residing in _____ do

hereby solemnly affirm and state as follows:
1 I am the _____ and authorized signatory of the Plaintiff
herein. I am conversant with the facts of this case and
competent to swear to this affidavit. The original suit is
filed for permanent prohibitory injunction.
2 The plaintiff is a supplier of electrical
equipment and appliances.

3 The defendant is a foundation registered as a

trust. It describes itself as a non-profit charitable trust
engaged in promoting art and culture and educational
activities in India. Its main function is to organise the
Kochi-Muziris Biennale. The fourth edition of the event -
Kochi-Muziris Biennale 2018 - recently concluded on
29-03-2019 after having commenced on 12-12-2018.
The Kochi-Muziris Biennale was conducted across
several venues, including Cabral Yard and Aspinwall
House.
 9

4 It is submitted that the plaintiff was selected

by the defendant for supplying and installing the Air
Conditioners at Cabral Yard and Aspinwall House for the
Kochi-Muziris Biennale 2018.

5 As per Purchase Order dated 12-11-2018, the

defendant accepted the quotation of the plaintiff for the
supply of twenty Air Conditioners, to be installed at
Cabral Yard, at a cost of Rs. 25,00,000/-. The said
Purchase Order also stated that an advance payment of
Rs. 17,04,000/- plus Rs. 4,00,000/- from the low side
works will be paid and the remaining amount would be
paid on satisfactory completion of the work.

6 As per Purchase Order dated 26-11-2018, the

defendant accepted the quotation of the plaintiff for the
supply of seven Air Conditioners, to be installed at
Aspinwall House, at a cost of Rs. 8,79,340/-. The said
Purchase Order also stated that an advance payment of
Rs. 8,00,000/- would be paid and the remaining
amount would be paid on the satisfactory completion of
the work.

7 It is submitted that in accordance with the

two Purchase Orders, the plaintiff supplied and installed
the Air Conditioners for the Kochi-Muziris Biennale
2018.

8 It is submitted that a perusal of the ledger

account between the plaintiff and the defendant would
reveal that while a total of Rs. 34,25,735/- was due
from the defendant to the plaintiff, only an amount of
Rs. 31,33,000/- has been paid so far. Thus, an amount
of Rs. 2,92,735/- continues to remain unpaid and due
from the defendant to the plaintiff. Thus, the entirety of
the materials supplied and installed by the plaintiff has
not been paid for by the defendant.
 10

9 It is submitted that despite repeated

reminders and requests, the defendant has not been
willing to pay the balance amount that is due to the
plaintiff.

10 It is submitted that the defendant has now

issued an auction notice dated 10-04-2019 wherein it
has proposed to conduct an auction of the Air
Conditioners supplied by the plaintiff on 25-04-2019.
The defendant is thus proposing to auction Air
Conditioners for which it has not itself paid fully. The
same would affect the rights of the plaintiff who has not
been paid its dues completely for the supply and
installation of the Air Conditioners for Kochi-Muziris
Biennale 2018.

11 It is submitted that when the plaintiff came

to know about the auction, it submitted a complaint
dated 13-04-2019 to the Sub Inspector of the Fort
Kochi Police Station. [Explanation for different amounts
shown as due in the complaint]. The plaintiff in the said
complaint has described how the defendant would
refuse to answer the plaintiff’s calls, or would some
times answer the phone calls and just state that the
due amount would be paid later.

12 It is submitted that the installation of the Air

Conditioners was a complex and delicate work of
engineering. Apart from the Air Conditioner units
themselves, there is one main outdoor unit at both
Cabral Yard and Aspinwall House, to which the Air
Conditioner units are connected. These connections are
concealed in trenches and pipes in the structures of the
buildings at the two locations. Apart from these
connections, there are many copper pipes carrying
gas, electrical cables etc. to the Air Conditioner units,
 11

which are concealed underground. It is submitted that

if the auction is allowed to proceed, then the person or
entity selected through that auction would be expected
to dismantle and remove the Air Conditioner units from
the two locations without any knowledge about these
underlying connections. This is likely to cause damage
worth lakhs of rupees to the Air Conditioner units and
the underlying network of connections. Given that the
Air Conditioners supplied by the plaintiff have not yet
been paid for fully, the defendant ought not to be
allowed to take any such action that would be likely to
damage the equipment and erode its value
significantly.

13 It is submitted that had the Air Conditioners

been paid for fully, the defendant would have been at
full liberty to dispose of the equipment in the manner it
saw fit. However, since the payment for the same is
not yet complete, despite repeated reminders, the
defendant has a duty to refrain from any action that
would affect the value of the goods supplied by the
plaintiff. This is particularly so as the defendant is a
recipient of public funds and therefore has a duty to
prevent unnecessary wastage of equipment, when it
has not yet paid for the same.

14 It is submitted that it has been widely

reported in the media that several contractors,
vendors, and workers have claimed that they have not
been paid their dues by the defendant for the Kochi-
Muziris Biennale 2018, have criticised the organisation
of the event, and have threatened legal action against
the defendant. It is submitted that the action of the
defendant in proposing to conduct the auction of goods
that it has not paid for appears to be a hasty step to
conclude the matters relating to Kochi-Muziris Biennale
2018 in an attempt to prevent further public attention
 12

to its management of the Kochi-Muziris Biennale 2018.

However, the same would cause grave prejudice to the
plaintiff since it is the plaintiff who has supplied the Air
Conditioners and has not yet been fully paid for it.

15In the light of the aforesaid facts and circumstances of

the case, the plaintiff is left with no option other than
to approach this Hon’ble Court for equitable reliefs
against the defendant restraining it from proceeding
with the auction of the Air Conditioners for which it has
not yet paid the plaintiff. The plaintiff has got no other
equally efficacious remedy for redressal of his
grievance.

16The counter petitioner or anybody under it may be

restrained by a decree of permanent prohibitory
injunction from proceeding with the auction of Air
Conditioners as notified in the notice dated 10-04-
2019.

17I am entitled to get an ad-interim order of injunction

without notice to the counter petitioner as there is
every chance for the defendant to proceed with the
auction on 25-04-2019. If notice is ordered by this
Hon’ble Court, delay will be caused and thereby the
petition will become infructuous. I have got a strong
prima facie case and the balance of convenience is in
my favour. If an order of interim injunction is not
granted I will be put to irreparable injury, hardship and
monitory loss.

Hence it is most respectfully submitted that this Hon’ble

Court may be pleased to grant an ad-interim injunction as
prayed for in the petition and that the petition may kindly
be allowed.
All the facts stated above are true and correct to the best
of my knowledge, information and belief.

Dated this the 22nd day of April 2019

 13

Deponent: _____

Solemnly affirmed and signed before me by the deponent

who is personally known to be, on this the 22nd day of
April 2019 in my office at Ernakulam.
Advocate
 14

BEFORE THE HONOURABLE VACATION COURT AT

ERNAKULAM
(TO BE FILED BEFORE THE HON’BLE MUNSIFF’S
COURT AT ERNAKULAM)

O.S No. /2019

I.A No. /2019
Petitioner/Plaintiff
M/s. Imperium Engineers, 38/2819 A, CBI Road,
Kathrikadavu, Kochi, Kerala – 682017 represented by its
authorised signatory _____.
Counter Petitioner/Defendant
Kochi Biennale Foundation, 1/1903, Kunnumpuram, Fort
Kochi PO, Kochi, Kerala – 682001, Represented by its
Secretary

PETITION FILED UNDER ORDER XXXIX RULE I READ

WITH SECTION 94 AND 151 OF THE CODE OF CIVIL
PROCEDURE
For the reasons stated in the accompanying affidavit it is
respectfully prayed that the counter petitioner or anyone
associated with it may be restrained by an ad-interim
order of injunction from proceeding with the auction of Air
Conditioners as notified in the notice dated 10-04-2019
till the disposal of the suit based on merits.

Dated this the 22nd day of April 2019

Counsel for the Petitioner