Allowed

M/S. Orient Exports and Imports v. S.Williams

Kerala HC3 Aug 2016OP(C)/1684/2016

Case brief

AI extract

What is this about?

This writ petition challenged the District Court's order refusing to transfer a specific performance suit and a money recovery suit to a single court. The High Court intervened under Article 227, setting aside the lower court's dismissal and ordering the transfer of both suits to one Principal Sub Court to ensure a joint trial and prevent divergent findings.

What did the court decide?

The order of the District Court dismissing the transfer application was set aside. The OriginalSuit No. 919/11 was transferred to the Principal Sub Court Thiruvananthapuram for disposal.

M/S. Orient Exports and Imports Vs S.Williams — Property and Title | 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 K.RAMAKRISHNAN

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WEDNESDAY, THE 3RD DAY OF AUGUST 2016/12TH SRAVANA, 1938

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OP(C).No. 1684 of 2016 (O)

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O.P(TP)NO. 69/2016 OF DISTRICT COURT, THIRUVANANTHAPURAM

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PETITIONER(S)/PETITIONERS :

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M/S. ORIENT EXPORTS AND IMPORTS, REPRESENTED BY ITS PARTNER T.T. JAMES, RESIDING AT TC 20/1654. ORIENT HOUSE, KARAMANA P.O, THIRUVANANTHAPURAM 695 002.

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M/S. ORIENT BIO TECH, REPRESENTED BY ITS PARTNER T.T. JAMES, RESIDING AT TC 20/1654. ORIENT HOUSE, KARAMANA P.O, THIRUVANANTHAPURAM 695 002.

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T.T. JAMES, AGED 65 YEARS, S/O. THOMAS, RESIDING AT TC 20/1654. ORIENT HOUSE, KARAMANA P.O, THIRUVANANTHAPURAM 695 002.

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EAPEN THOMAS, AGED 55 YEARS, S/O. THOMAS, RESIDING AT TC 20/1654. ORIENT HOUSE, KARAMANA P.O,

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THIRUVANANTHAPURAM 695 002.

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SHERLY EAPEN,

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W/O. EAPEN THOMAS, AGED 52 YEARS,

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RESIDING AT TC 20/1654. ORIENT HOUSE, KARAMANA P.O, THIRUVANANTHAPURAM 695 002.

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NIRMALA JAMES,

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AGED 53 YEARS, W/O. T.T. JAMES,

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RESIDING AT TC 20/1654. ORIENT HOUSE, KARAMANA P.O, THIRUVANANTHAPURAM 695 002.

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SERGI JOSEPH, AGED 43 YEARS, S/O. THOMAS, RESIDING AT TC 20/1654, ORIENT HOUSE, KARAMANA P.O, THIRUVANANTHAPURAM 695 002.

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JULI MOL SERGI, AGED 43 YEARS, W/O. SERGI JOSEPH THOMAS, RESIDING AT TC 20/1654, ORIENT HOUSE, KARAMANA P.O, THIRUVANANTHAPURAM 695 002.

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..2/-

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..2..

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OP(C).No. 1684 of 2016 (O)

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9. REGIMOL THOMAS, AGED 46 YEARS, W/O. THOMAS JOSEPH, RESIDING AT TC 20/1654, ORIENT HOUSE, KARAMANA P.O, THIRUVANANTHAPURAM 695 002.

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BY ADVS. SRI.K.SHAJ SRI.SAJJU.S SRI.RENJIT GEORGE

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RESPONDENT(S)/RESPONDENT :

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S.WILLIAMS, S/O. LATE SAMUEL, CHITHRA, TC 14/415, VIKAS BHAVAN, P.O PALAYAM, THIRUVANANTHAPURAM, PIN- 695 010.

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BY ADVS. SRI.P.B.SAHASRANAMAN SRI.T.S.HARIKUMAR

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 03-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Msd.

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OP(C).No. 1684 of 2016 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS :

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EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S NO. 919/2011 ON THE FILES OF THE FIRST ADDITIONAL SUBORDINATE JUDGES COURT, THIRUVANANTHAPURAM DATED 20-07-2011.

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EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS IN O.S NO. 919/2011 ON THE FILES OF THE FIRST ADDITIONAL COURT, THIRUVANANTHAPURAM.

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EXHIBIT P3 TRUE COPY OF THE PLAINT IN O.S NO 1158/2011 DATED 29-09-2011

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EXHIBIT P4 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS IN O.S NO. 1158/2011 OF THE PRINCIPAL SUBORDINATE JUDGES COURT, THIRUVANANTHAPURAM.

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EXHIBIT P5 TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENT FILED BY THE DEFENDANTS IN O.S NO. 1158/250011 ON THE FILES OF THE PRINCIPAL SUB COURT, THIRUVANANTHAPURAM.

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EXHIBIT P6 TRUE COPY OF THE MEMORANDUM OF TRANSFER PETITION FILED JOINTLY BY THE PRESENT PETITIONERS BEFORE THE DISTRICT COURT, THIRUVANANTHAPURAM.

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EXHIBIT P7 TRUE COPY OF THE WRITTEN STATEMENT OF OBJECTION FILED BY THE RESPONDENT IN O.P(TP) NO. 69/2016 ON THE FILES OF THE DISTRICT COURT, THIRUVANANTHAPURAM.

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EXHIBIT P8 TRUE COPY OF THE ORDER IN O.P(TP) NO.69/2016 ON THE FILES OF THE DISTRICT COURT, THIRUVANANTHAPURAM.

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RESPONDENT(S)' EXHIBITS :

NIL

//TRUE COPY//

P.S.TO JUDGE.

Msd.

K. RAMAKRISHNAN, J.

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O.P.(C)No.1684 of 2016

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....................................................... Dated this the 3^rd day of August, 2016.

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JUDGMENT

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The petitioners in OP(TP)No.69/2016 filed this petition challenging Ext.P8 order passed by the District Court, Thiruvananthapuram in that original petition under Article 227 of the Constitution of India.

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It is alleged in the petition that the respondent herein as plaintiff filed Ext.P1 suit as O.S.No.919/2011 against the second petitioner M/s. Orient Bio Tech with petitioners 3 to 9 as partners for specific performance of the contract of sale entered into between the plaintiff and defendants in that suit in respect of certain extent of property. The same plaintiff filed Ext.P3 suit as OS.No.1158/2011 against the first petitioner M/s. Orient Exports and Imports, Thiruvananthapuram with petitioners 3 to 9 as partners for realisation of certain amount due on the basis of some monetary transaction and also based on the cheque said to have been given by the said firm. The case of the petitioners in both these cases was that there is only one transaction and that was a money transaction between the first petitioner and the plaintiff and the agreement of sale was executed in respect of a property as an additional security for the same and using those documents, two different suits have been filed and they are pending before different courts. OS.No.919/2011 is pending before the First Additional Sub

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O.P.(C)No.1684 of 2016

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Court, Thiruvananthapuram whereas OS.No.1158/2011 is pending before the Principal Sub Court, Thiruvananthapuram. Since the petitioners apprehended that these two suits were tried by different courts, their defence is likely to be affected. So they filed Ext.P6 OP(TP).No.69/2016 before the District Court, Thiruvananthapuram for transfer of these cases to one court. By Ext.P8 impugned order, learned district judge dismissed the application. Aggrieved by the same, the present petition has been filed under Article 227 of the Constitution of India.

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Heard Sri.K. Shaj, learned counsel appearing for the petitioners and Sri. V. Francis, learned counsel who represents Sri. T.S. Harikumar, learned counsel appearing for the sole respondent.

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Learned counsel for the petitioners submitted that the main contention in both the cases was that for one and the same transaction namely money transaction between the first petitioner and the respondent, two documents have been obtained, one a cheque and other an agreement to sell property belonging to petitioners 3 to 9. Their case was that the agreement to sell was executed as security for the money transaction between the first petitioner and the respondent herein. So, if these cases were tried separately, there is a likelihood of prejudice being caused to the petitioners. The court below had not considered these aspects in the right perspective. Hence the petition.

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O.P.(C)No.1684 of 2016

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On the other hand, learned counsel for the respondent submitted that though the partners are the same for the partnership firm, who are arrayed as petitioners 1 and 2, they are dealing in different activities and they are independent bodies and there is no common cause of action arises in the case. One is in respect of agreement to sell and other is in respect of a money transaction between one of the firms. So there is no necessity for the cases to be tried for by the same court. The counsel also submitted that O.S.No.919/2011 was listed for trial and it was decided ex parte once and thereafter the ex parte decree was set aside and it is only then the petition for transfer has been filed with an intention to protract the proceedings.

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It is an admitted fact that petitioners 3 to 9 are partners of both petitioners 1 and 2 firms and it is also an admitted fact that they are the joint owners of the property involved in OS.No.919/2011 pending before the First Additional Sub Court, Thiruvananthapuram. It is also in a way admitted that though there are two partnership firms, the partners in both the firms are same and both these concerns were being carried on by the family members as a family concern in the name of Orient groups. OS.No.919/2011 was filed by the respondent herein against the second petitioner and petitioners 3 to 9 as partners of the second petitioner firm for specific performance of the contract in respect

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O.P.(C)No.1684 of 2016

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of the property belonging to that firm. Both the firms were represented by the same managing partner. The other suit was filed for recovery of money due from the first petitioner firm. The case of the defendants in both these cases was that there was only a money transaction in respect of which an agreement to sell was also executed as an additional security. As per the contentions raised by the defendants in the cases, there is some connection between the two transactions alleged in the transactions and it is always better in such cases that the both cases will have to be considered by the same court. Whether joint trial is required or not is a matter to be considered by that court. If these two cases are tried by different courts, there is a possibility of divergent findings being delivered by the courts and that may affect the defence of the parties in the other suit as well as the finding in one case may have some bearing in the disposal of the other case as well. It is true that OS.No.919/2011 was decreed ex parte once and thereafter it was set aside and now posted in the list. The other case namely OS.No.1158/2011 now pending before the Principal Sub Court, Thiruvananthapuram and steps are not completed and it is posted for settlement of the issues. But that is not a ground for denying transfer, if the interest of justice requires that both the cases will have to be tried by the same court. So under such circumstances, the order passed by the court below

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O.P.(C)No.1684 of 2016

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dismissing the application is set aside and the original petition is allowed and OS.No.919/11 pending before the First Additional Sub Court, Thiruvananthapuram is transfered to Principal Sub Court, Thiruvananthapuram for disposal. Parties are at liberty to move the court below for joint trial if so advised and if such an application is filed, it is for that court to consider and pass appropriate orders in that application. Considering the fact that one case is already ripe for trial, the Principal Sub Court to which the case is now being transferred is directed to expedite the disposal of both the cases at the earliest. The First Additional Sub Judge is directed to transmit the records to the Principal Sub Court immediately.

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With the above directions and observations, this petition is disposed of. Office is directed to communicate a copy of this judgment to both the courts immediately.

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Sd/-

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K. RAMAKRISHNAN, JUDGE.

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M/S. Orient Exports and Imports v. S.Williams

Case brief

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M/S. Orient Exports and Imports v. S.Williams

Case brief

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