Senior counsel CS Vaidyanathan made the submission before the first bench of Chief Justice Indira Banerjee and Justice Abdul Quoddhose during the hearing of DMK's petition seeking disqualification of Mr Panneerselvam, then a rebel leader, and 10 other MLAs for voting against Mr Palaniswami.
Besides DMK, four disqualified MLAs loyal to rebel leader TTV Dhinakaran have also moved the court aggrieved over the speaker not acting on their plea filed earlier for action against Mr Panneerselvam and others.
The four had earlier filed the petition before the speaker before he disqualified 18 pro-Dhinakaran MLAs, including them.
Mr Vaidyanathan was countering the submission by DMKs senior counsel yesterday that Mr Panneerselvam and the AIADMK had committed contempt of court by saying no whip was issued during the vote of confidence while an affidavit contrary to this had been filed before the Election Commission by the then rebel group.
We are not denying the fact that there was a whip. But the whip was issued to the 122 MLAs who were in Koovathur. We were not in Koovathur and directions were not issued to 11 of us by the party whip, he argued.
At the height of the rebellion by Mr Panneerselvam, the AIADMK had kept its 122 MLAs at the resort near here and they were brought to the Assembly on February 18 for the trust vote which was eventually won by Mr Palaniswami by a margin of 122-11.
The DMK yesterday furnished a copy of the affidavit filed by the Panneerselvam group during the pendency of the dispute between two factions of the party.
The groups led by Mr Panneerselvam and Mr Palaniswami later merged and the Election Commission allotted the party symbol to them, ignoring the claim of the faction led by Mr Dhinakaran.
"In such circumstances, the relief sought for in the petition is not maintainable," he argued.
Also, Mr Palaniswami was elected as the leader of the AIADMK legislative party at a meeting held on February 14, 2017 in a resort at Koovathur. Mr Panneerselvam and the 10 other MLAs were not present in the meeting, he submitted.
Mr Palaniswami sought to form the government with the support of 122 MLAs only. In fact even while a whip was allegedly issued to each MLA independently, there was no direction or whip that was received by the 11 MLAs, he said.
Countering the arguments, senior counsel PS Raman, appearing for the disqualified four MLAs, said the present submission by Mr Panneerselvam was "a clear after thought" as the affidavit filed before the Election Commission was brought to light.
"In the counter affidavit to DMKs petition, they claimed that they have not deified whip. But now they claim that the whip was issued only to 122 MLAs of AIADMK and not to them. The present submission is a clear after thought, after the affidavit filed with the ECI was brought to light," he argued.
Besides, when a chief minister was facing a floor test, it becomes mandatory for the party MLAs to vote in favour of his confidence motion. A whip under party seal was not required in such circumstance, he added.