Dismissed

M/S.Trans World Hire Purchase India Ltd. v. Smt.Sibi

Kerala HC2 Aug 2013Mat.Appeal/504/2013

Case brief

AI extract

What is this about?

High Court dismissed this matrimonial appeal against the Family Court's order rejecting a petition to lift property attachment. The Court held that the Family Court correctly found the sale deed to be a security instrument based on probable evidence and noted the appellant's lack of production of authorization or possession documents.

What did the court decide?

Matrimonial Appeal No.504 of 2013 stood dismissed without interference with the impugned order of the Family Court.

M/S.Trans World Hire Purchase India Ltd. Vs Smt.Sibi — Matrimonial and Divorce | Kerala HC (2013)

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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 ANTONY DOMINIC &

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THE HONOURABLE MR. JUSTICE P.D.RAJAN

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FRIDAY, THE 2ND DAY OF AUGUST 2013/11TH SRAVANA, 1935

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Mat.Appeal.No. 504 of 2013 ()

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-----------------------------AGAINST ORDER DATED 30.3.2013 IN CLAIM PETITION NO.1804/2011,I.A.NO.3063/2009 IN O.P. 774/2009 FAMILY COURT, KOTTARAKKARA.

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APPELLANT(S)/CLAIM PETITIONER:

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M/S.TRANS WORLD HIRE PURCHASE INDIA LTD

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(A COMPANY INCORPORATED UNDER THE INDIAN COMPANIES ACT HAVING ITS REGISTERED OFFICE AT BUSINESS LANE BEACH ROAD, KOLLAM REPRESENTED BY ITS MANAGING DIRECTOR M.K.SUNDARAN PILLAI S/O.LATE K.P.MADHAVAN PILLAI, AGED 53 YEARS RESIDING AT SOBHANA MANDIRAM, ARAMAM, KOLLAM.

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BY ADVS.SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN SRI.T.R.SADEESAN

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RESPONDENT(S)/RESPONDENTS/

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1. SMT.SIBI, AGED 33 YEARS D/O.REMLA BEEVI, RISANA SAW MILL, PERUMANNAR MURI ARACKAL VILLAGE, PATHANAPURAM-689 695.

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2. RIHANA (MINOR), AGED 14 YEARS D/O.SIBI, RISANA SAW MILL, PERUMANNAR MURI ARACKAL VILLAGE, PATHANAPURAM-689 695.

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3. RISANA (MINOR), AGED 11 YEARS D/O.SIBI, RISANA SAW MILL, PERUMANNAR MURI ARACKAL VILLAGE, PATHANAPURAM-689 695.

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4. SRI.SHAMSUDEEN, AGED 39 YEARS S/O.SHAHUL HAMEED RAWTHER, KARIMPALOOR HOUSE PUNNALACHERRY, PUNNALA VILLAGE PATHANAPURAM TALUK-689 696.

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(RESPONDENTS 2 & 3 WHO ARE MINORS ARE REPRESENTED BY IST RESPONDENT THEIR GUARDIAN AND MOTHER)

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 02-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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acd

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ANTONY DOMINIC & P.D. RAJAN, JJ.

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Mat. Appeal No.504 of 2013

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Dated this the 2^nd day of August, 2013

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JUDGMENT

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ANTONY DOMINIC,J.

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This appeal is filed against the order of the Family Court, Kottarakkara in Claim Petition No.1804/2011. By the impugned order, the Family Court dismissed the Claim Petition.

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Briefly stated the case is that O.P.No.774/2009 was filed by respondents 1 to 3 against the 4^th respondent claiming maintenance. In that O.P., respondents 1 to 3 filed I.A.No.3063/2009 for attaching the property scheduled therein. By its order dated, 15.9.2009, the Family Court ordered attachment. In 2011, the appellant filed Claim Petition No.1804/2011 seeking to lift the attachment. According to the appellant, by Ext.A1 sale deed executed on 20.4.2007 and registered at SRO Kottarakkara on 17.5.2007, the appellant had purchased the property in question. The respondents objected to the prayer by filing their objection. PW1 was examined and Exts.A1, A2 and B1 to B7 were produced by the parties. After considering the rival contentions, the Family Court accepted the case of the respondents that Ext.A1 was executed as a security for the huge

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Mat. Appeal No.504/13 2

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loan amount due to the appellant from the 4^th respondent to be more probable and rejected the petition. It is this order, which is under challenge in this appeal.

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We heard the learned counsel for appellant and also considered the submissions made.

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Reading of the impugned order shows that mainly there are two reasons assigned by the Family Court. The first reason stated by the Family Court is the absence of any evidence produced by the appellant to show that the Managing Director, who filed the Claim Petition was the authorizer of the Company. The second reason stated is that, on evidence, the Family Court found the case canvassed by respondents 1 to 3 that the document in question was accepted, as more probable.

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As far as the absence of authorisation is concerned, reading of the order shows that, according to the appellant, by resolution passed by the Company, the Managing Director was authorised to file the Claim Petition. However, he has no case that the resolution in question authorising him was produced before the Family Court, despite the contention of respondents 1 to 3 that he had no such authorisation.

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In such a situation, the Family Court cannot be faulted for taking the view that in the absence of the authorisation entitling the Managing Director to present the Claim Petition, the Claim

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Mat. Appeal No.504/13

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Petition was untenable.

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Regarding the reliability of the document in question is concerned, reading of the order shows that all that was produced by the appellant was Ext.A1, which is not the original of the document. Going by the averments in Ext.A1, the document in question was executed on 20.4.2007 and it was registered on 17.5.2007. However, even according to the appellant, the respondents still continue in possession of the property on the strength of a rent deed, which also was not produced before the Family Court. It was also evident from Ext.B2, the application made by the 4^th respondent for registration under the KVAT Act, that in the affidavit filed by him on 6.11.2008, he claimed himself as the owner of the property and also affirmed that it was free from encumbrance. He also had produced his original title deed. Exts.B2 and B3 also showed that in 2008, revenue recovery proceedings initiated against the property for the dues of the 4^th respondent. Ext.B4 issued by the Village Officer, Valakom under the Right to Information Act, on 2.2.2013 also showed that the 4^th respondent is the owner of the property.

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Added to this, in spite of the fact that the attachment was effected as early as in May 2009, the Claim Petition was filed only in 2011. The Family Court has also taken note of the case of PW1 that consideration for Ext.A1 was paid on 17.5.2007 and that

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Mat. Appeal No.504/13

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the same was contrary to the recital in Ext.A1, which shows that the consideration was already paid when the document was executed. The document before the Family Court also proved that, in 2007, the 4^th respondent had substantial liability to the appellant and the evidence also indicated that the version of respondents 1 to 3 that the document in question was executed as security for the liability is more probable. It is in such circumstances, the Family Court declined to reject the attachment as prayed for by the appellant.

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Having regard to the above, in our view, both the

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reasons accepted by the Family Court do not suffer from any illegality justifying interference.

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Therefore, we do not find any reason to interfere with the order of the Family Court.

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Mat.Appeal will stand dismissed.

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ANTONY DOMINIC, JUDGE

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P.D. RAJAN, JUDGE.

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acd

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Mat. Appeal No.504/13 5

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Mat. Appeal No.504/13 6

M/S.Trans World Hire Purchase India Ltd. v. Smt.Sibi

Case brief

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M/S.Trans World Hire Purchase India Ltd. v. Smt.Sibi

Case brief

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