Disposed

The Dhanalaxmi Bank Ltd. v. P.Shaym

Kerala HC18 Feb 2016FAO/35/2012

Case brief

AI extract

What is this about?

Appeal against dismissal of application for attachment of funds. Court disposed of appeal directing garnishee to deposit Rs.7 lakhs in fixed deposit to secure the claim, noting parties' agreeable undertaking to retain the amount until suit outcome.

What did the court decide?

Directed second respondent to deposit Rs.7,00,000/- in fixed deposit in first respondent's name, with receipt retained, to be released only after final outcome of the suit.

The Dhanalaxmi Bank Ltd. Vs P.Shaym — Execution and Attachment | Kerala HC (2016)

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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 & THE HONOURABLE MR. JUSTICE A.HARIPRASAD

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THURSDAY, THE 18TH DAY OF FEBRUARY 2016/29TH MAGHA, 1937

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FAO.No. 35 of 2012

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AGAINST THE ORDER IN I.A.1373/11 IN O.S.329/11 ON THE FILE OF THE SUBORDINATE JUDGE, ALAPPUZHA DATED 23.12.2011

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APPELLANT/PETITIONER/PLAINTIFF:

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THE DHANALAXMI BANK LTD.

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A BANKING COMPANY REGISTERED UNDER THE COMPANIES ACT AND HAVING BRANCHES ALL OVER INDIA INCLUDING ONE AT ALAPUZHA REPRESENTED BY SURESHBABU K.R, AGED 52, S/O.DAMODARAN NAIR RESIDING AT VEEKSHNAM ROAD, ERNAKULAM VICE PRESIDENT THE DHANALAXMI BANK LTD, ZONAL OFFICE, DHANALAXMI BUILDINGS (FIRST FLOOR), NEAR AR CAMP OFFICE, MARINE DRIVE, ERNAKUALM 682 031.

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BY ADV. SRI.C.K.KARUNAKARAN

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RESPONDENT/RESPONDENT/1ST DEFENDANT:

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P.SHAYM ARJUNAM, PAZHAYAVEEDU P.O, ALAPPUZHA 688 009 NOW RESIDING AT MURUKALAYAM, PUNNAPRA P.O

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ALAPPUZHA, PIN 688 009.

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Addl. R2. THE EXECUTIVE ENGINEER PUBLIC WORKS DEPARTMENT, ROADS DIVISION,

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ALAPPUZHA 688 561.

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(Impleaded as additional R2 as per order in I.A.No.1250/15 dated 18.2.2016)

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R1 BY ADV. SRI.T.K.VIPINDAS R BY ADV. SMT.P.K.PRIYA R BY ADV. SRI.K.V.SREEVINAYAKAN RADDL.2 BY ADV. SMT.LEKSHMI SWAMINATHAN

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THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 18-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ANTONY DOMINIC & A.HARIPRASAD, JJ.

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- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

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F.A.O.No.35 of 2012

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- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18^th day of February, 2016

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JUDGMENT

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Hariprasad, J.

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The order under challenge in this appeal was passed by the learned Subordinate Judge, Alappuzha in I.A.1373/11 in O.S.329/11. An application filed under Order XXXVIII Rule 5 C.P.C. for attachment was dismissed finding that the petitioner's claim has been secured by a mortgage.

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Heard the learned counsel for the appellant, learned counsel for

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the first respondent and the learned counsel appearing for the additional respondent No.3.

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The claim in the suit is for about Rs.7 lakhs. The additional respondents raised a contention that the mortgage purported to have been executed in favour of the bank was obtained by fraud. Therefore, the appellant bank was anxious to secure the claim by an attachment over the money for which the first respondent was entitled, as a contractor, to be received from the second respondent. In the course of hearing on 15.2.2012, the learned counsel appearing for the first respondent undertook that he will not withdraw the garnishee amount in the hands of

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F.A.O.No.35 of 2012

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: 2 :

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Executive Engineer, PWD Roads Division, Alappuzha. It is the grievance of the appellant that the first respondent obtained a copy of the order in I.A.No.1373/11 and submitted the same before the Executive Engineer, PWD Road Division, Alappuzha and got the amount that was in deposit in his name released. According to the learned counsel, this was done in defiance of the undertaking given by the first respondent before this Court. It is also submitted by the learned counsel for the appellant that a Contempt of Court Proceeding is still pending in respect of the said action. However, now the question to be resolved is whether the appellant is entitled to get any order to preserve Rs.7 lakhs at the hands of the garnishee (second respondent) as a security for the suit claim.

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Learned counsel for the first respondent submitted that the allegation that he clandestinely withdrew the amount is incorrect. It is also submitted that he, being a Contractor, will be always having claims against PWD for more than 7 lakhs.

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Having heard the learned counsel on both sides, we are of the view that the appeal itself can be disposed of with the following directions:

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F.A.O.No.35 of 2012

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: 3 :

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(1) The order impugned need not be disturbed, in view of the fact that the parties are agreeable for retaining Rs.7,00,000/- belonging to the first respondent with the garnishee (second respondent) at any given point of time.

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(2) The second respondent is directed to deposit Rs.7,00,000/belonging to the first respondent in fixed deposit in the name of the first respondent and keep the deposit receipt and it shall be released only after the final outcome of the suit.

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Learned counsel appearing for the additional respondent

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submitted that the suit is at the stage of hearing, after closing the evidence. Therefore, the court below shall dispose of the case as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a copy of this judgment.

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FAO is disposed of as above.

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SD/-

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ANTONY DOMINIC JUDGE

SD/-

A.HARIPRASAD

JUDGE

jes

The Dhanalaxmi Bank Ltd. v. P.Shaym

Case brief

What is this about?

What did the court decide?

The Dhanalaxmi Bank Ltd. v. P.Shaym

Case brief

What is this about?

What did the court decide?

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