Disposed

Hashim Abu Nabeel v. P.a.Hamza

Kerala HC2 Aug 2017FAO/130/2017

Case brief

AI extract

What is this about?

This banco disposed of an appeal challenging dismissal of an interim injunction application. The court held that since the trial had commenced and defendants undertook not to alienate the property for one month, the injunction was not necessary. The suit was directed to be disposed of within one month.

What did the court decide?

Interim injunction vacated; direction to trial court to dispose of suit within one month.

Hashim Abu Nabeel Vs P.a.Hamza — Specific Performance | Kerala HC (2017)

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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 P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

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WEDNESDAY, THE 2ND DAY OF AUGUST 2017/11TH SRAVANA, 1939

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FAO.No. 130 of 2017 ()

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AGAINST THE ORDER IN I.A.4243/2016 IN O.S.167/2010 OF THE SUBORDINATE JUDGE OF KOZHIKODE DATED 29.6.2017

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APPELLANT(S)/PETITIONER/PLAINTIFF :-

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HASHIM ABU NABEEL, AGED 58 YEARS, S/O.MOHIDEEN, NOW RESIDING AT III CN, APPOLO SEA BREEZ APARTMENTS, KAMBRAM BEACH,KOZHIKODE TALUK.

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BY ADVS.SRI.K.V.PAVITHRAN SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL SRI.P.SAJU SRI.NIAS MOOPAN SRI.E.M.UNNIKRISHNAN (MANJERI)

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RESPONDENT(S)/RESPONDENTS/DEFENDANTS :-

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1. P.A.HAMZA, AGED 50 YEARS, S/O.LATE ABDULLA HAJI, RESIDING AT CRESCENT HOUSE, EAST NADAKKAVU, CALICUT, PIN – 673 001.

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2. INDUS MULTI BUSINESS CENTRE PVT. LTD., REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR P.A.HAMZA, S/O.LATE ABDULLA HAJI, AGED 50 YEARS, CRESCENT HOUSE, EAST NADAKKAVU, CALICUT – 673 001.

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3. FAREEDA HAMZA, AGED 50 YEARS, W/O.P.A.HAMZA, S/O.ABDULLA HAJI, CRESCENT HOUSE, EAST NADAKKAVU, CALICUT – 673 001.

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4. KERALA LAND REFORMS AND DEVELOPMENT CO-OPERATIVE SOCIETIES LIMITED, CITY BANK BUILDING, CHALAPPURAM.P.O, KOZHIKODE, REPRESENTED BY ITS GENERAL MANAGER/SECRETARY JOYIS JOSE, AGED 33 YEARS, S/O JOSE.A.J, NALONKANDY ARCADE, FRANCIS ROAD JUNCTION, CHALAPPURAM, KASABA AMSOM,DESOM, KOZHIKODE – 673 001.

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R1 BY ADV. SRI.N.M..MADHU (CAVEATOR) R2-R3 BY ADV. SRI.T.KRISHNANUNNI (SR.) SMT.MEENA.A. SRI.VINOD RAVINDRANATH SRI.VINAY MATHEW JOSEPH SRI.K.C.KIRAN

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THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 02-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P.N.RAVINDRAN, J. & DEVAN RAMACHANDRAN, J.

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F.A.O. No.130 of 2017

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Dated this the 2^nd day of August 2017

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J U D G M E N T

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P.N.Ravindran, J.

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This appeal arises from the order passed by the Court of Subordinate Judge of Kozhikode on 29.6.2017 in I.A.No.4243 of 2016 in O.S.No.167 of 2010. By the said order, the court below dismissed the application filed by the appellant under Order XXXIX Rule 1 of the Code of Civil Procedure for an order of temporary injunction restraining the respondents, their men, workers or agents or any person claiming under them from altering the present condition of the plaint schedule property or from making new boundaries or from constructing building or from assigning any portion thereof to third parties or from encumbering it or from inducting third parties into the property pending disposal of the suit. The brief facts of the case are as follows :-

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The appellant as plaintiff instituted O.S.No.167 of 2010 on 24.2.2010 praying for following reliefs :-

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F.A.O. No.130 of 2017

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-: 2 :-

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“It is therefore humbly prayed that this Hon'ble Court may be pleased to :

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(i) declare that the plaintiff is the absolute owner of the plaint schedule properties purchased by the 1^st defendant in the name of the 2^nd defendant as per Document Nos.3107/2005, 3108/2005, 3123/2005, 3128/2005, 3234/2005, 3235/2005, 3498/2005, 287/2008 and 52/2009 all of S.R.O., Meenchanda and permit the plaintiff to recover possession of the plaint schedule properties from the defendants based on such title;

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(ii) alternatively, permit the plaintiff to recover a sum of Rs.10,11,60,500.00 together with future interest at 12% per annum thereon till realisation from the defendants, personally and their assets and charged on the properties scheduled to the plaint;

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(iii) in the event of prayers (i) and (ii) being disallowed, permit the plaintiff to recover a sum of Rs.9,96,00,000.00 together with future interest at 12% per annum thereon till realisation from the defendants, personally and their assets and charged on the properties scheduled to the plaint;

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(iv) direct the 1^st defendant to account for the sum of Rs.1,96,00,000/- paid by the plaintiff into the 1^st defendant's account;

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(v) permit the plaintiff to realize the full costs of this suit from the defendants and their assets and charged on the properties scheduled to the plaint;

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(vi) grant such other reliefs that the plaintiff may pray from time to time and which this Hon'ble Court may deem fit to grant;”

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F.A.O. No.130 of 2017

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-: 3 :-

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The aforesaid reliefs were sought on the averment that the plaintiff had paid over to the first defendant an aggregate sum of Rs.1,96,00,000/- for the purpose of purchasing the land lying by the side of the Mini by-pass at Kozhikode, but, contrary to the understanding between the parties, the first defendant utilised the funds to purchase 2.02 acres of land under nine different sale deeds, seven executed in the year 2005, one in the year 2008 and one in the year 2009, in the name of the second defendant, a private limited company, of which, the first defendant, his wife and the third defendant are the share holders. The appellant has, in the plaint, prayed for a declaration as he is the absolute owner of the properties thus purchased as per the aforesaid nine sale deeds. He has in the alternative, prayed for a decree allowing to recover the sum of Rs.10,11,60,500/- being the market value of the plaint schedule property as on the date of institution of the suit together with interest at the rate of 12% per annum from the defendants personally and their assets and charged on the plaint schedule property. He has also prayed that he may be granted a decree allowing him to realise the sum of Rs.9,96,00,000/- comprised of the sum of Rs.1,96,00,000/- paid by him for purchasing the

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F.A.O. No.130 of 2017

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-: 4 :-

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plaint schedule property, the sum of Rs.2,00,00,000/- as damages for breach of trust and the sum of Rs.6,00,00,000/- by way of compensation. He has also prayed for a decree directing the first defendant to account for the sum of Rs.1,96,00,000/stated to have been paid by him to the first defendant. Though along with a plaint, the appellant had filed I.A.No.897 of 2010 for an interim order of injunction restraining the defendants, their men and agents from selling or creating any documents in respect of the plaint schedule property or from encumbering the plaint schedule property or from committing acts of waste therein pending trial of the suit, an order of injunction as prayed for was not granted. It is not in dispute that the said application is even today pending.

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Upon receipt of summons, the defendants entered appearance and filed a written statement resisting the suit. Besides questioning the ability of the plaintiff to raise the sum of Rs.1,96,00,000/-, they contended that the said amount represents a part of the amount paid by one Shabeer Abdul Khader, that Shabeer Abdul Khader was a friend of the plaintiff and he was introduced to the defendants by him, that the dispute between them on the one hand and Shabeer Abdul

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F.A.O. No.130 of 2017

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-: 5 :-

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Khader on the other led to the institution of O.S.No.116 of 2009 on the file of the Court of the Subordinate Judge of Kozhikode and that suit was settled in the Lok Adalath and was disposed of in terms of the settlement entered into between the parties in the Lok Adalath on 13.2.2010. It is stated at the Bar that the instant suit was filed 11 days thereafter relying on payments, which were made by Shabeer Abdul Khader. It is the case of the defendants that the payments stated to have been made by the plaintiff were in fact payments made by Shabeer Abdul Khader and that with the settlement of O.S.No.116 of 2009 in the Lok Adalath, the entire liability to Shabeer Abdul Khader stands discharged. It appears, later the second defendant transferred 01 acre and 05 cents of land to a co-operative society and the society got itself impleaded as the additional fourth defendant in the suit. Long thereafter, the plaintiff filed I.A.No.4243 of 2016 under Order XXXIX Rule 1 of the Code of Civil Procedure praying for an interim order of injunction restraining the defendants, their men or workers or agents or any person claiming under them from altering the present condition of the plaint schedule property or from making new boundaries in the property or from constructing buildings

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F.A.O. No.130 of 2017

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-: 6 :-

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therein or from assigning any portion of the property to third parties or from encumbering the property or from inducting third parties into the property pending disposal of the suit. The relevant averments in the affidavit filed in support of the application for injunction are those contained in paragraphs 9 and 10 thereof which are extracted below :-

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“9. Since the plaint schedule properties are purchased making use of my money and playing fraud on me I have filed the suit to get my title over the plaint schedule properties declared. Along with the suit I have filed an application for temporary injunction as I.A.897/2010. But so far the application is not heard and decided. Taking advantage of that aspect the defendants 1 to 3 that is respondents 1 to 3 herein got executed assignment deeds with respect to portions of plaint schedule properties in favour of 4^th respondent herein.

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From the conduct of the respondents it is evident that they are bending upon to alter the present condition of the properties and also to induct 3^rd parties. Pending suit defendants 1 to 3 already inducted 4^th defendant in the property. 4^th defendant has decided to construct building in the property pending suit and also to induct 3^rd parties. In the interest of justice it is absolutely necessary to preserve the plaint schedule property in the condition in which it exists now. If the respondents are not prevented from constructing building in the property, making new boundaries, encumbering the property, selling any portion of the properties to 3^rd parties, induct 3^rd parties

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F.A.O. No.130 of 2017

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-: 7 :-

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in the property I will be put to suffer serious loss and hardship.”

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The defendants filed a counter affidavit resisting the application, reiterating the contentions raised by them in the written statement. They also contended that the plaintiff has not made out a prima facie case warranting the grant of an order of injunction, that the balance of convenience is not in his favour and that the defendants will be put to irreparable hardship and injury if an order of injunction as prayed for is granted. They prayed that the application for injunction may be dismissed with costs. The fourth defendant filed a separate counter affidavit reiterating the contentions raised by the other defendants.

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After considering the rival contentions, the court below held, placing reliance on six receipts produced by the appellant, that he has made out a prima facie case. The court below, however, dismissed the application for injunction on the ground that the balance of convenience is not in his favour and that the appellant has also not proved that declining an order of injunction would result in irreparable injury to him. The plaintiff has, aggrieved thereby, filed this appeal.

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F.A.O. No.130 of 2017

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-: 8 :-

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When this appeal was admitted on 28.7.2017, Sri.N.M.Madhu, learned counsel took notice for the first respondent. Notice was ordered to be served on the other respondents by Special Messenger at the appellant's expense. On that day, we also passed interim order of injunction on I.A.No.682 of 2017 restraining respondents 1 to 3 from further alienating the plaint schedule property until further orders. We also directed that the pendency of the appeal or the interim order passed by this court shall not be taken as a ground to adjourn the trial of the suit and that the court below shall, having regard to the fact that the suit is more than seven years old, try and dispose it of in a time bound manner.

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When the appeal was taken up for final hearing today, Sri.T.Krishnanunni, learned Senior Counsel appearing on behalf of respondents 2 and 3 submitted on instructions that as the trial of the suit has commenced, defendants 2 and 3 will not alienate the plaint schedule property for a period of one month from today. Learned Senior Counsel further submitted that in the light of the said undertaking, this court may dispose of the appeal with a direction to the trial court to try and dispose of the suit within the said period of one month. Learned counsel

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F.A.O. No.130 of 2017

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-: 9 :-

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appearing for the first respondent/first defendant also made a similar undertaking. Though the 4^th respondent has been served, it has not chosen to enter appearance.

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As the trial of the suit has commenced and the appellant has not proved to our satisfaction that the defendants are taking steps to put up permanent structures in the plaint schedule property (there is no averment to the effect that the defendants are taking steps after obtaining or without obtaining a building permit to construct a commercial or residential building in the plaint schedule property), we are of the opinion that the apprehension, if any felt by the appellant regarding alienation will stand dispelled in the light of the undertaking made and given on behalf of the defendants by the learned counsel appearing for them in this appeal.

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In such circumstances, we dispose of the appeal with a direction to the Court of the Subordinate Judge of Kozhikode to try and dispose of O.S.No.167 of 2010 and the suits if any ordered to be tried along with it, expeditiously and in any event within an outer limit of one month from the date of receipt of a copy of this judgment. It will be open to either of the parties to produce a certified copy of this judgment before the court below

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F.A.O. No.130 of 2017

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for compliance. We also deem it appropriate to record the undertaking made and given on behalf of the defendants that for a period of one month from today, they will not alienate the plaint schedule property. Needless to say the interim order of injunction earlier passed by this court on I.A.No.682 of 2017 shall stand vacated in the light of the aforesaid undertaking.

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Sd/P.N.RAVINDRAN JUDGE

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Sd/DEVAN RAMACHANDRAN JU DGE

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//True copy//

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P.A. To Judge

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Jvt/8.8.2017

Hashim Abu Nabeel v. P.a.Hamza

Case brief

What is this about?

What did the court decide?

Hashim Abu Nabeel v. P.a.Hamza

Case brief

What is this about?

What did the court decide?

What the court decided

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