Disposed

Patel Real Estate Developers Pvt. Ltd. v. P.K.Kuriakose

Kerala HC10 Nov 2016OP(C)/2509/2016

Case brief

AI extract

What is this about?

The High Court examined observations in an impugned transfer order that allegedly prejudged the question of joint trial. It held that transfer does not ipso facto permit a joint trial; the receiving court must independently consider propriety of joint trial considering parties' objections.

What did the court decide?

The petition was disposed of with directions that the Additional Sub Judge Kottayam must independently consider the application for joint trial in accordance with law.

Patel Real Estate Developers Pvt. Ltd. Vs P.K.Kuriakose — Company and Corporate | 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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THURSDAY, THE 10TH DAY OF NOVEMBER 2016/19TH KARTHIKA, 1938

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OP(C).No. 2509 of 2016 (O)

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OS.NO.6/2014 OF DISTRICT COURT, KOTTAYAM

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PETITIONER(S)/3RD RESPONDENT:

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PATEL REAL ESTATE DEVELOPERS PVT. LTD., WHICH IS A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 WITH REGISTERED OFFICE AT DOOR NO.6280, 2ND FLOOR ABOVE DHANALAKSHMI BANK, PALARIVATTOM, ERNAKULAM, INDIA, REPRESENTED BY ITS MANAGING DIRECTOR.

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BY ADV. SRI.BABU PAUL

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RESPONDENT(S)/RESPONDENTS 1 TO 8:

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1. P.K.KURIAKOSE, AGED 49 YEARS, S/O KURIAKOSE, RESIDING AT PAZHAYAMADOM, VALLAKOM, NADUVILE VILLAGE, VAIKOM TALUK.

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2. ASGAR SHAKOOR PATEL,

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NATASHA, 52-HILL ROAD, BANDARA WEST, MUMBAI-400 050.

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3. PATEL HOLDINGS LTD.,

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WHICH IS A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 WITH REGISTERED OFFICE AT NATASHA, 52-HILL ROAD, BANDRA WEST, MUMBAI, MAHARASHTRA, INDIA-400 050 REPRESENTED BY ITS MANAGING DIRECTOR.

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4. NATASHA CONSTRUCTION PROJECTS [PVT. LTD.

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WHICH IS A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 WITH REGISTERED OFFICE AT NATASHA, 52-HILL ROAD, BANDRA WEST, MUMBAI, MAHARASHTRA, INDIA-400 050 REPRESENTED BY ITS MANAGING DIRECTOR.

Msv/

-2-

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OP(C).No. 2509 of 2016 (O)

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5. NATASHA CONSTRUCTION PVT. LTD., WHICH IS A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 WITH REGISTERED OFFICE AT NATASHA, 52-HILL ROAD, BANDRA WEST, MUMBAI, MAHARASHTRA, INDIA-400 050 REPRESENTED BY ITS MANAGING DIRECTOR.

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6. NATASHA HOMES PVT. LTD., WHICH IS A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 WITH REGISTERED OFFICE AT UNIT NO.4, FLOORALCON CHAMBERS D.B.BANDODKAR MARG-PANAJI, GOA, INDIA-403 001, REPRESENTED BY ITS MANAGING DIRECTOR.

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7. VAIKKOM BUILDER AND PROPERTIES PVT. LTD., WHICH IS A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 WITH REGISTERED OFFICE AT DOOR NO.6280, 2ND FLOOR ABOVE DHANALAKSHMI BANK, PALARIVATTOM, ERNAKULAM, 682 025, INDIA, REPRESENTED BY ITS MANAGING DIRECTOR.

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8. THE BHRAMAMANGALAM BUILDERS AND PROPERTIES LTD., WHICH IS A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 WITH REGISTERED OFFICE AT DOOR NO.6280, 2ND FLOOR ABOVE DHANALAKSHMI BANK, PALARIVATTOM, ERNAKULAM, 682 025 INDIA, REPRESENTED BY ITS MANAGING DIRECTOR.

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9. THE POOTHOTTA BUILDERS AND PROPERTIES PVT. LTD., WHICH IS A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 WITH REGISTERED OFFICE AT DOOR NO.6280, 2ND FLOOR ABOVE DHANALAKSHMI BANK, PALARIVATTOM, ERNAKULAM - 682 025, INDIA, REPRESENTED BY ITS MANAGING DIRECTOR.

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R1 BY ADVS. SRI.G.SREEKUMAR (CHELUR)

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SRI.NANDAGOPAL S.KURUP

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION

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ON 10-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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msv/

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OP(C).No. 2509 of 2016 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1: THE TRUE COPY OF THE TRANSFER PETITION. EXHIBIT P2: THE TRUE COPY OF THE OBJECTION. EXHIBIT P3: THE TRUE COPY OF THE JUDGMENT DATED 30.5.2016. EXHIBIT P4: THE TRUE COPY OF THE REVIEW PETITION. EXHIBIT P5: THE TRUE COPY OF THE ORDER IN OP NO.217/2015 DATED 22.7.2015.

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RESPONDENT(S)' EXHIBITS

NIL

//TRUE COPY//

P.S.TO JUDGE

msv/

K.RAMAKRISHNAN, J. ==================== O.P.(C). No.2509 of 2016

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===============================

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Dated this the 10^th day of November, 2016

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JUDGMENT

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This is an application filed by the petitioner challenging Ext.P5 order to the extent regarding certain observations made under Article 227 of the Constitution of India.

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It is alleged in the petition that petitioner was the 2^nd respondent in Ext.P1 transfer petition filed by the 1^st respondent as O.P.(Transfer)217 of 2015 before District Court Kottayam seeking transfer of O.S. 452 of 2012 of Principal Sub Court Kottayam to Additional Sub Court Kottayam, where O.S.6 of 2014 was pending for the purpose of joint trial. It is alleged in the petition that O.S.452 of 2012 was filed by the petitioner herein against the respondents seeking certain reliefs and the 1^st respondent herein filed O.S.6 of 2014 before Additional Sub Court, Kottayam seeking damages after paying 1/10th court fee. Thereafter he filed an application to permit him to proceed with the suit as an indigent person as he is unable to pay the balance court fee. That petition was dismissed by the court below and he filed FAO 203 of 2016 before this Court and there was an order not to

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O.P.(C).No.2509 of 2016 2

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reject that suit for non payment of court fee during pendency of the appeal before this Court. According to the 1^st respondent, the point to be decided in both the cases are same. So it is necessary to transfer O.S.452 of 2012 pending before Principal Sub Court, Kottayam to Additional Sub Court Kottayam to be tried along with O.S.6 of 2014. With these allegations he filed O.P.(Transfer) 217 of 2016 before District Court, Kottayam. Petitioner filed Ext.P2 objection, objecting the transfer. But later when the application came up for hearing, it appears that a submission was made that they have no objection in trnasferring the case from Principal Sub Court to Additional Sub Court, but there is no need for a joint trial. But the court below passed Ext.P3 order stating that the petition was not opposed. So the petition was allowed and transfer was ordered and they filed Ext.P4 application for review of that order and the court below passed Ext.P5 impugned order dismissing the application, wherein it has been stated if at all, the petitioner is at liberty to apply for this remedy as provided under Section 10 of Code of Civil Procedure., to that extent the order is being now challenged by this petitioner.

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Heard Shri. Babu Paul learned counsel appearing for

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O.P.(C).No.2509 of 2016 3

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the petitioner and Shri. Sreekumar Chelur learned counsel appearing for the 1^st respondent and others remained absent.

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The learned counsel for the petitioner submitted that he has no objection in transferring the case, but he only objects the question of considering joint trial as it will only delay the proceedings in O.S.452 of 2012. The learned counsel for the respondent submitted that there is nothing wrong in the order passed,

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It may be mentioned here that the court below had passed transfer of O.S452 of 2012 of Principel Sub court Kottayam to Additional Sub court Kottayam where O.S.6 of 2015 is pending. According to the 1^st respondent both the cases will have to be tried jointly. Since such an allegation was made in the transfer petition itself which infact was opposed by the petitioner in their Ext.P2 objection that was not considered but the transfer petition was allowed as though it was not opposed. Considering the question regarding joint trial that the trial court should not proceed on the basis that it was not opposed for the purpose of joint trial, they filed an application for review of the order, but the court below had dismissed the application with liberty for the

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O.P.(C).No.2509 of 2016 4

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petitioner to file an application under Section 10 of the Code of Civil Procedure. Even assuming that two suits were pending even between the same parties, the question as to whether it requires joint trial or not is a matter to be considered by the court before which both cases are pending. Further, court cannot order joint trial without moving for that purpose. Merely because a case has been transferred from one court to another will not ipso fact will amount to allowing request for joint trial, it will have to be independently considered by the court before whom both the suits are pending. So it is clarified that even though the transfer has been ordered the question of joint trial has to be considered by the court in accordance with law after considering the objections if any raised by both the parties in this regard. Mrerely because a trnasfer has been made by the District Court does not mean it has ipso facto given permission to the court below to order a joint trial. If any application for joint trial has been filed by any of the parties, untrammelled by the observations made in the transfer petition, the Additional Sub Judge Kottayam is directed to consider and pass appropriate orders in that application strictly in accordance with law.

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O.P.(C).No.2509 of 2016 5

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With the above directions and observations the the petition is

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disposed of.

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Registry is directed to communicate this order to the concerned court immediately.

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K.RAMAKRISHNAN, JUDGE

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SKV

Patel Real Estate Developers Pvt. Ltd. v. P.K.Kuriakose

Case brief

What is this about?

What did the court decide?

Patel Real Estate Developers Pvt. Ltd. v. P.K.Kuriakose

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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