Dismissed

M/S.Hemambika Chittes v. v.C.Balachandran

Kerala HC20 Sept 2014WP(C)/15825/2010

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging an order upholding the dismissal of a suit against the fourth defendant and his property. The Court held that as the plaintiff did not seek a personal decree against the impleaded defendant, the property charged for security should also be avoided.

What did the court decide?

The Writ Petition is dismissed with costs. The order dismissing the suit as against the fourth defendant and his property is affirmed.

M/S.Hemambika Chittes Vs v.C.Balachandran — Property and Title | Kerala HC (2014)

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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 B.KEMAL PASHA

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SATURDAY, THE 20TH DAY OF SEPTEMBER 2014/29TH BHADRA, 1936

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WP(C).No. 15825 of 2010 (O)

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AGAINST THE ORDER IN IA.3695/2009 IN OS 255/2004 of PRINCIPAL SUB COURT, PALAKKAD

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PETITIONER:

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M/S.HEMAMBIKA CHITTIES AND LOANS PRIVATE LIMITED, REP. BY ITS CHAIRMAN ENNAKKOTTIL STREET, BIG BAZAR, PALAKKAD.

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BY ADVS. SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP

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RESPONDENTS:

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V.C.BALACHANDRAN, S/O.VELIYATH CHANDRASEKHARAN, RESIDING AT VELIYATH HOUSE KOORKKENCHERY VILLAGE, THRISSUR TALUK.

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M.R.RAJAN, S/O.MADAMBIKKATTIL RAGHAVAN, RESIDING AT KANIMANGALAM VILLAGE, THRISSUR TALUK.

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SUBHASH KUMAR, S/O.ARIKKATHU BHASKARAN NAIR, RESIDING AT MUPLIYAM VILLAGE, MUKUNDAPURAM TALUK THRISSUR DISTRICT.

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C.GOKULRAJ, S/O.CHIRAKKAL GOPALAN, REP. BY MUKTYAR V.C. BALACHANDRAN RESIDING AT VELIYATH HOUSE, KOORKKENCHERY VILLAGE THRISSUR TALUK.

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R4 BY ADV. SRI.C.P.MOHAMMED NIAS

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-09-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No.15825/2010

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXTP1: TRUE COPY OF THE JUDGMENT IN OS.255/2004 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE OF PALAKKAD DATED 10.4.2007.

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EXT.P2 : TRUE COPY OF THE JUDGMENT IN FAO.276/2007 ON THE FILE OF THIS HIONOURABLE COURT DATED 24.7.2009.

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EXT.P3 : TRUE COPY OF THE STATEMENT FILED BY THE PETITIONER COMPANY IN THE SUIT DATED 2.11.2009. EXT.P4 : TRUE COPY OF THE REVISED JUDGMENT DISMISSING THE SUIT DATED 4.11.2009. EXT.P5 : TRUE COPY OF THE APPLICATION FOR REVIEW IN IA.3695/2009 IN OS.255/2004 DATED 6.11.2009. EXT.P6 : TRUE COPY OF THE ORDER IN IA.3695/2009 IN O.S.255/2004 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE OF PALAKKAD DT.13.11.2009.

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RESPONDENTS' EXHIBITS: NIL

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// TRUE COPY //

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B.KEMAL PASHA, J.

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W.P.(Civil) No.15825 of 2010 O

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Dated this the 20^th day of September, 2014

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JUDGMENT

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The plaintiff in O.S. No.255 of 2004 of the Subordinate

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Judge's Court, Palakkad, is presently challenging order dated

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13.11.2009 passed by the said Court in I.A. No.3695 of 2009.

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The suit in question was filed against the first defendant who was the subscriber of certain chitties with the plaintiff. Defendants 2 and 3 were the sureties to the first defendant. Amounts were allegedly due to the plaintiff from defendants 1 to 3. The fourth defendant was impleaded on an averment that the fourth defendant had executed a power of attorney in respect of his properties in favour of the first defendant and thereafter the first defendant along with the fourth defendant had executed a deed of

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hypothication in respect of plaint schedule item No.2 properties

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W.P.(C.)15825/2010

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belonged to the fourth defendant in favour of the plaintiff, for securing the due payment of the chitty instalments. Even though the fourth defendant contested the suit by filing a written statement, ultimately an ex-parte decree happened to be passed against all the defendants, as they did not turn up on the date on which they were to be examined. Consequently, Ext.P1 ex-parte judgment and decree were passed. It is pertinent to note that defendants 1 to 3 had not turned up to challenge Ext.P1 ex-parte judgment and decree. The fourth defendant alone had filed an application for setting aside the ex-parte decree under Order IX Rule 13 of the Code of Civil Procedure. That application was dismissed by the court below. Aggrieved by the same, the fourth defendant had approached this Court through F.A.O. No.276 of 2007.

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Vide judgment dated 24.7.2009, a Division Bench of this

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court allowed the F.A.O., by setting aside the decree as against the

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W.P.(C.)15825/2010

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appellant/fourth defendant alone through Ext.P2 judgment. Paragraph No.3 of Ext.P2 states:

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“Accordingly, we set aside the decree as against the appellant on condition that the appellant shall deposit/pay an amount of ₹5,000/- (Rupees five thousand only) by way of cost to be paid to the respondent/plaintiff. The amount shall be paid to the respondent/plaintiff or be deposited within three weeks from today before the court below and the respondent/plaintiff is entitled to withdraw the same.”

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Thereafter, it seems that the plaintiff accepted the cost

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of ₹5,000/- as ordered, from the fourth defendant. It seems that by smelling strong resistance from the part of the fourth defendant, the Chairman of the plaintiff company had filed Ext.P3 statement before the court below, by stating as follows:

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“In view of the fact that the decree passed by this Honourable Court in the above suit on 10.4.2007 stands confirmed by the Honourable High Court as against defendants 1 to 3, vide its order dated 24.7.2009 in F.A.O. No.276 of 2007, the plaintiff submits that no decree need be passed against defendant no.4.”

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W.P.(C.)15825/2010

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On getting Ext.P3 statement, the court below passed

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Ext.P4 judgment, the operative portion of which says:

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“Accordingly the suit as against defendant No.4 and his

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properties (item No.2 in the plaint schedule) is dismissed.”

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Thereafter, wisdom prevailed in the plaintiff and Ext.P5

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Review Petition as I.A. No.3695 of 2009, was filed seeking review of Ext.P4 judgment, which avoided a decree against the property of the fourth defendant. The court below passed Ext.P6 order on the I.A. The court below found that there was no error apparent on

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the face of the record and there was nothing to be reviewed in the

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case of Ext.P4.

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Heard the learned counsel for the petitioner, Shri.P.S. Appu and the learned counsel for the fourth respondent, Shri.Muhammed Nias. Other respondents are not contesting.

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According to the learned counsel for the petitioner, what

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was meant by the plaintiff in filing Ext.P3 statement before the

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W.P.(C.)15825/2010

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court below was that he did not want a personal decree as against the fourth defendant and nothing more. It is argued that the court below ought not to have avoided a decree as against the plaint schedule item No.2 properties of the fourth defendant.

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On a perusal of Ext.P1 judgment, the operative portion shows the mode of recovery of the decree amount. It has been specifically incorporated therein that in case the defendants fail to pay the decree amount within the specified time, the decree amount has to be recovered from the sale of the charged properties. It has been further made clear that in case any balance amount is due even after such sale of the charged properties, such balance amount has to be realised from the other assets of the defendants. The operative portion of Ext.P1 does not show that there was a personal decree as against any of the defendants. As far as the fourth respondent is concerned, there was no personal decree as against him.

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W.P.(C.)15825/2010

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It seems that the fourth respondent was impleaded as the fourth defendant, solely because of the fact that there was a deed of hypothication, allegedly executed by him along with the first defendant in favour of the plaintiff. The fourth defendant had strongly resisted the said claim. There is a further averment that the fourth respondent had executed a power of attorney in respect of his property in favour of the first respondent. The said claim was also specifically denied by the fourth respondent in the written statement. The fourth defendant was impleaded in the suit solely because of the fact that his properties were also scheduled as item No.2 in the plaint.

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It is evident that there was no personal decree as against the fourth defendant. Further, there was no cause for passing a personal decree against the fourth defendant also. When the fourth defendant, against whom an ex-parte decree was passed, had challenged the same, it seems that court below had without any

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W.P.(C.)15825/2010

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sufficient reasons, dismissed the said I.A. Aggrieved by the same, F.A.O. was filed by the fourth defendant before this Court. This court, through Ext.P2 judgment, set aside the ex-parte decree as against the fourth defendant and remitted the matter to the court below, for fresh disposal on condition that the fourth defendant should pay a cost of ₹5,000/- to the plaintiff. The plaintiff accepted the said cost and filed Ext.P3 stating that the plaintiff did not want a decree as against the fourth defendant and that he was satisfied with the decree as against defendants 1 to 3. The present argument of the learned counsel for the petitioners is that what was intended by the plaintiff in filing Ext.P3 was that the plaintiff did not want to get a personal decree as against the fourth defendant. There is no cause of action for passing a personal decree as against fourth defendant. Admittedly he was not a co-borrower, or surety or a guarantor in the transaction. He was impleaded solely because of the fact that his property was allegedly furnished as the security

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W.P.(C.)15825/2010

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for the chitty transactions. When there was no cause for a personal decree against the fourth defendant and especially when no such personal decree was passed against him, the plaintiff cannot be heard to say that what was intended him through Ext.P3 was that the plaintiff did not want a personal decree as against the fourth defendant. Deliberately, the plaintiff had avoided unpleasant circumstances as there was strong resistance from the part of the fourth defendant in passing a decree as against his property. That was why he was fighting tooth and nail as against the ex-parte decree passed against him. When such a statement, as contained in Ext.P3, was filed by the plaintiff before the court below, definitely the plaintiff was intending to avoid the resistance and objection of the fourth defendant. When the fourth defendant was impleaded only because of the fact that plaint schedule item No.2 properties was allegedly furnished as security, when he has to be avoided from the suit, necessarily his property has also to be

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W.P.(C.)15825/2010

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avoided. It seems that the court below had rightly passed Ext.P4 judgment by dismissing the suit as against the fourth defendant and his property scheduled as item No.2. The said judgment does not suffer from any error apparent on the face of the judgment. In such a context, Ext.P5 is not maintainable and the same was also rightly dismissed by the court below through the impugned order. The impugned order does not suffer from any illegality, irregularity or impropriety or jurisdictional error. There is absolutely nothing to interfere with the impugned order. This W.P.(Civil) is not maintainable, and is only to be dismissed, and I do so.

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In the result, this W.P.(Civil) is dismissed with costs.

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Sd/-

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B.KEMAL PASHA , JUDGE

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// TRUE COPY //

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PA to Judge

M/S.Hemambika Chittes v. v.C.Balachandran

Case brief

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M/S.Hemambika Chittes v. v.C.Balachandran

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