Allowed

Bernard Manuel @ Roy v. Shine Augustine

Kerala HC13 Feb 2013OP(C)/243/2013

Case brief

AI extract

What is this about?

The High Court of Kerala allowed an Original Petition challenging the dismissal of an application for attachment before judgment. The court held that the trial court erred in ignoring the respondents' undertaking not to transfer property and granted attachment of the respondents' interest in specific items.

What did the court decide?

The order dated 20.12.2012 is set aside. I.A. No.1099 of 2012 is allowed. Item No.1 and 1/3rd right of 2nd respondent in Item No.2 of the schedule are attached.

Bernard Manuel @ Roy Vs Shine Augustine — Execution and Attachment | 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 THOMAS P.JOSEPH

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WEDNESDAY, THE 13TH DAY OF FEBRUARY 2013/24TH MAGHA 1934

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OP(C).NO. 243 OF 2013 (O)

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I.A. NO.1099 OF 2012 IN O.S. NO.132 OF 2012 SUB COURT, THODUPUZHA

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PETITIONER(S):

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1. BERNARD MANUEL @ ROY AGED 38 YEARS RESIDING AT THERUVANKUNNE HOUSE, KARIMKUNNAM P.O KARIMKUNNAM VILLAGE, THODUPUZHA TALUK.

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2. THERUVAN PLANTATIONS (P) LTD A PRIVATE LIMITED COMPANY

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HAVING ITS REGISTERED OFFICE AT THERUVAN TOWER MARKET ROAD, THODUPUZHA, IDUKKI DISTRICT KERALA REPRESENTED BY MANAGING DIRECTOR

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BERNAD MANUAL @ ROY.

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3. THERUVAN AGRO FARMS (P) LTD A PRIVATE LIMITED COMPANY REPRESENTED BY MANAGING DIRECTOR BERNAD MANUAL @ ROY.

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BY ADVS.SRI.DEVAN RAMACHANDRAN SRI.ANEESH K.M. SRI.S.NIKHIL SANKAR

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RESPONDENT(S):

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1. SHINE AUGUSTINE S/O.M.T.AUGUSTINE, RESIDING AT MADACK HOUSE KUDAYATHOOR P.O, KOLPARA, THODUPUZHA TALUK.

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O.P(C) NO.243 OF 2013

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2. JOSEPH SIJO S/O.M.C.CHACKO, BUSINESS RESIDING AT KLAKUZHIYIL HOUSE, MUTTAM P.O MUTTAM VILLAGE, THODUPUZHA TALUK.

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3. TINTA SEBASTIAN S/O.SEBASTIAN, RESIDING AT VETTICKAL HOUSE KADAMAKUZHY P.O, KATTAPPARA.

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BY ADV. SRI.S.K.PREMJITH MENON ) BY ADV. MANEKSHA.D ) BY ADV. SMT.R.REKHA ) BY ADV. SRI.N.SAJAN ANTONY ) R3

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 13-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P(C) NO.243 OF 2013

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APPENDIX

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PETITIONER(S)' EXHIBITS:

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EXHIBIT P1 CERTIFIED COPY OF THE ORDER DATED 20.12.2012 IN I.A. NO.1099 OF 2012 IN O.S. NO.132 OF 2012 ON THE FILE OF THE COURT OF SUBORDINATE JUDGE, THODUPUZHA RESPONDENT(S)' EXHIBITS: NIL

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TRUE COPY

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P.S. TO JUDGE

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THOMAS P.JOSEPH, J.

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==================================== O.P(C) No.243 of 2013 ====================================

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Dated this the 13^th day of February, 2013

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J U D G M E N T

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Respondents appear.

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This Original Petition is in challenge of Ext.P1, order dated 20.12.2012 on I.A. No.1099 of 2012 in O.S. No.132 of 2012 of Sub Court, Thodupuzha.

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Petitioners filed that suit for recovery of damages for alleged premature termination of a licence and for licence amount due as per the agreement. Petitioners filed I.A. No.1099 of 2012 for attachment before judgment (of property of 2^nd respondent and described in the schedule along with I.A. No.1099 of 2012). Learned Sub Judge issued notice to the respondents.

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Respondents denied the agreement and liability to pay damages or licence fee. Second respondent has made an undertaking that properties will not be transferred or encumbered without order of trial court. The trial court on a consideration of the rival contentions came to the conclusion that conduct of the parties and circumstances of the case is

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O.P(C) No. 243 of 2013

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-: 2 :-

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such that it is not possible to draw an inference that 2^nd respondent is about to dispose of property as alleged. Learned Sub Judge also opined that petitioners who filed forged documents and approached the court with uncleaned hands are not entitled to an attachment before judgment. Consequently I.A. No.1099 of 2012 was dismissed. That order is under challenge.

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Learned counsel has placed reliance on the decision

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in Hameed T.Abdulla v. Koyenco Autos Pvt. Ltd.

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(2012 [4] KLT 71 (Case No.54) to contend that application for attachment before judgment could not be disposed of merely based on undertaking made by the opposite parties. Reliance is also placed reliance on the decision in Pareed Master v.

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Antony (1987 KLT 649) to contend that when a request for attachment before judgment is made, the court has to take a pragmatic view of the matter bearing in mind difficulties of the plaintiff. According to the learned counsel, learned Sub Judge was not right at this stage in observing that petitioners came to the court with unclean hands and have filed forged documents.

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I am inclined to think that at this stage learned Sub

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O.P(C) No. 243 of 2013

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-: 3 :-

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Judge was not required to go into the genuineness or otherwise of the document produced by the petitioner. What is required to be shown is only a prima facie satisfaction for the court that unless attachment is made the opposite party might dispose of property or remove the same from the local limits of the court concerned. In Pareed Master v. Antony (supra) it is held that the court while construing Rule 5 of Order XXXVIII of the Code of Civil Procedure should keep in mind pragmatic difficulties of plaintiff. It is also stated that the defendant if he had intention to defeat or delay the execution of the decree that may be passed against him, would be disposing of the property in a clandestine manner and that plaintiff would not be in a position to learn about that.

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Respondents have made an undertaking in the court on 19.11.2012 as above stated. A Division Bench of this Court

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in Cherukutty v. Subrama Sastrigal and 5 others

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(1987 KLJ 1144) has held that such undertaking will have the effect of an attachment making Section 64 of the Code applicable and that if a transfer is made in violation of such undertaking decree holder will not be bound by the transfer.

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O.P(C) No. 243 of 2013

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-: 4 :-

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In this case it is seen that learned Sub Judge has not accepted or acted upon the undertaking made by the respondents in court on 19.11.2012. Instead, learned Sub Judge has dismissed I.A. No.1099 of 2012. Therefore the undertaking made by the respondents is of no avail or effective.

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Having regard to the nature of the claim made by the petitioners I am satisfied that it is required to be enquired into by the trial court. If before that properties of second respondent are disposed of, execution of the decree that petitioners may get in their favour would either be delayed or protracted. In that view of the matter, I am inclined to think that learned Sub Judge ought to have granted an order of attachment.

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Respondents have not shown sufficient cause why they shall not furnish security for the plaint claim, interest and costs. Hence property of the 2^nd respondent is liable to be attached before judgment.

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Resultantly, this Original Petition is allowed as under: (i) Exhibit P1, order dated 20.12.2012 on I.A. No.1099 of 2012 in O.S. No.132 of 2012 of the Sub Court, Thodupuzha is set aside.

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O.P(C) No. 243 of 2013

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-: 5 :-

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(ii) I.A. No.1099 of 2012 is allowed. Consequently, item No.1 and the 1/3^rd right of 2^nd respondent in item No.2 of the schedule to I.A. No.1099 of 2012 are placed under attachment.

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(iii) Registry shall communicate the order of attachment to the Sub Registrar, Arakkulam.

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(iv) If the 2^nd respondent wishes to have the attachment lifted it is open to him to furnish security to the satisfaction of the court below and request to lift the attachment.

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THOMAS P. JOSEPH, JUDGE.

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vsv

Bernard Manuel @ Roy v. Shine Augustine

Case brief

What is this about?

What did the court decide?

Bernard Manuel @ Roy v. Shine Augustine

Case brief

What is this about?

What did the court decide?

What the court decided

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