Dismissed

Kattappana Marketing v. Marykutty

Kerala HC19 Jun 2017AS/475/2000

Case brief

AI extract

What is this about?

The High Court of Kerala upheld the lower court's dismissal of a suit for specific performance and setting aside a sale deed. The Court held that Section 14 of the Limitation Act did not apply as the arbitration claim and current suit did not involve the same matter in issue, rejecting the plea for exclusion of time.

What did the court decide?

The appeal was dismissed. No specific performance was granted. The impugned judgment and decree were held well-founded.

Kattappana Marketing Vs Marykutty — Specific Performance | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE SATHISH NINAN MONDAY, THE 19TH DAY OF JUNE, 2017/29TH JYAISHTA, 1939 A.S.No. 475 of 2000 (E) -----------------------

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AGAINST THE JUDGMENT IN O.S.22/1996 OF SUB COURT, KATTAPPANA DATED 20-12-1999

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APPELLANT/PLAINTIFF: -------------------

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KATTAPPANA MARKETING CO-OPERATIVE SOCIETY LTD. NO.K.328, REGISTERED OFFICE AT KATTAPPANA, KATTAPPANA KARA, KATTAPPANA VILLAGE. BY ADVS.SRI.V.M.KURIAN SRI.MATHEW B. KURIAN SRI.K.T.THOMAS SRI.A.V.THOMAS

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RESPONDENTS/DEFENDANTS: -----------------------

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MARYKUTTY, AGED ABOUT 46 YEARS, W/O. JOSEPH, PUTHIYAPARAMBIL HOUSE, KUNTHALAMPARA KARA, KATTAPPANA VILLAGE. 2. JOSEPH, AGED ABOUT 56 YEARS, S/O. VARKEY, PUTHIYAPARAMBIL HOUSE, KUNTHALAMPARA KARA, KATTAPPANA VILLAGE.

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MATHEW, AGED ABOUT 50 YEARS, S/O. JOSEPH, NELLIMALAMATTATHIL HOUSE, CHINNAR KARA, KALKOONTHAL VILLAGE.

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R1 BY ADV. SRI.T.I.ABDUL SALAM ADV. SRI.P.CHANDY JOSEPH ADV. SRI.C.K.VIDYASAGAR

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THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 19-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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V.CHITAMBARESH & SATHISH NINAN, JJ.

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A.S.No. 475 of 2000

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------------------------Dated this the 19^th day of June, 2017

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J U D G M E N T

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Chitambaresh, J.

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The second defendant was an employee of the plaintiff Co-operative Society who was eventually dismissed from service after disciplinary proceedings for alleged embezzlement of funds. The plaintiff filed an arbitration case against the second defendant and his wife the first defendant under Section 69 of the Kerala Co-operative Societies Act, 1969 for realisation of money. Ext.A4 award therein pursuant to Ext.P3 judgment of remand in appeal by the Kerala Cooperative Tribunal fastened liability for payment of money on the second defendant alone. The arbitration case as against the first defendant was held to be not maintainable under Section 69 of the Kerala Co-operative Societies Act, 1969 as she was neither an employee nor a member.

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AS.No.475/2000

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It appears that the second defendant along with the first defendant had executed Ext.A2 agreement with the plaintiff undertaking to create a charge over the property of the first defendant for the monetary liability. The first defendant had soon thereafter executed Ext.A5 sale deed in favour of her brother the third defendant obviously to screen the property from the liability. The present suit has been filed to declare that Ext.A5 sale deed is fraudulent and not binding on the plaintiff and for specific performance of Ext.A2 agreement to execute a mortgage. The court below has dismissed the suit against which the plaintiff has come up in appeal contending inter alia that the suit is in time and that a charge should be clamped on the property.

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Ext.A2 agreement sought to be specifically

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enforced is dated 3.10.1988 and the suit has been filed on 7.2.1996 well beyond the period of three years as permitted

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AS.No.475/2000

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under Article 54 of the Limitation Act, 1963. The plaintiff however contends that he was bona fide prosecuting the arbitration case and that the period so spent is liable to be excluded under Section 14 of the Limitation Act, 1963. It can possibly be stated that the arbitration case is a civil proceeding to which Section 14 of the Act applies [See M.P.Steel Corporation's case (2015 (2) KLT 996 (SC)]. But it cannot be said that the 'matter in issue' in the arbitration case and in the present suit is the same in which event only can Section 14 of the Limitation Act, 1963 be called in aid.

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The arbitration case was a claim for money

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simplicitor against defendants 1 and 2 whereas the reliefs claimed in the present suit are to set aside Ext.A5 sale deed and also to specifically enforce Ext.A2 agreement. The matter in issue are undoubtedly not one and the same for Section 14 of the Limitation Act, 1963 to apply. [See Food Corporation of

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AS.No.475/2000

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India v Mohammed Kunhi (2009 (3) KLT 627). We are of the firm view that Section 14 of the Limitation Act, 1963 cannot be called in aid by the plaintiff to tide over the bar of limitation since the matter in issue is not the same. We are also not inclined to grant specific performance directing the first defendant to offer security by executing a mortgage in exercise of our discretion under the Specific Relief Act.

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Ext.A2 agreement sans registration is not a mortgage by itself and no case has been made out compelling the first defendant to execute a mortgage in favour of the plaintiff as has been sought. The plaintiff having no right over the property cannot question Ext.A5 sale deed executed by the first defendant in favour of the third defendant and to get a declaration that it is fraudulent. The plaintiff is free to execute the award in the arbitration case as against the second defendant as envisaged by law and no relief can be granted as

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AS.No.475/2000

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against the first and third defendants. The impugned judgment and decree of the court below are well founded and do not warrant interference in this Appeal Suit filed under

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Section 96 read with Order XLI Rule 1 CPC.

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The Appeal Suit fails. Dismissed. No costs.

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Sd/V.CHITAMBARESH, JUDGE

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Sd/SATHISH NINAN, JUDGE

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nj-sha/14.05.2017

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-true copy-