Dismissed

K.R Ushasree v. Sujir Ganesh Naik

Kerala HC17 Oct 2018OP(C)/50/2017

Case brief

AI extract

What is this about?

Two orders accepting security to lift attachment under Article 227 were challenged. The Single Judge held that the finding on factual acceptability of security cannot be interfered with absent compelling reasons, flagrant violation, or miscarriage of justice, and dismissed the petitions.

What did the court decide?

Petitions dismissed without prejudice to parties' right to agitate the issue via proper lex fori remedies.

K.R Ushasree Vs Sujir Ganesh Naik — Execution and Attachment | Kerala HC (2018)

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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.SOMARAJAN

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WEDNESDAY,THE 17TH DAY OF OCTOBER 2018 / 25TH ASWINA, 1940

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OP(C).No. 50 of 2017

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AGAINST THE ORDER IN E.P.No.16/2010 IN OS No. 362/2002 of ADDL.SUB COURT,KOLLAM, DATED 07-10-2016

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PETITIONER/DECREE HOLDER/PLAINTIFF:

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K.R USHASREE, W/O.MOHANACHANDRAN NAIR, PROPRIETRIX, SAI EXPORT ENTERPRISES, KOLLAM - RESIDING AT HARISREE, KOCHUPILAMOODU, KOLLAM.

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BY ADVS.SRI.N.D.PREMACHANDRAN SRI.D.AJITHKUMAR

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RESPONDENTS/JUDGMENT DEBTORS/DEFENDANT & ADDL. DEFENDANT :

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1 SUJIR GANESH NAIK, PROPRIETOR S.G.N CASHEW COMPANY, RESIDING AT SUJIR VILLA, MUNDAKKAL WEST, KOLLAM (DIED)

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2 GEETHANJALI PAI, W/o. N MOHAN PAI, SUJIR VILLA, MUNDAKKAL WEST, KOLLAM. BY ADV. SRI.K.SUBASH CHANDRA BOSE

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 17.10.2018, ALONG WITH OP(C)No.56/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P.(C) Nos.50 & 56/2017

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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.SOMARAJAN

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WEDNESDAY,THE 17TH DAY OF OCTOBER 2018 / 25TH ASWINA, 1940

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OP(C).No. 56 of 2017

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AGAINST THE ORDER IN E.P.No.21/2010 IN OS No.360/2002 of ADDL.SUB COURT,KOLLAM, DATED 07-10-2016

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PETITIONER/DECREE HOLDER/PLAINTIFF:

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MOHANACHANDRAN NAIR, S/O. PADMANABHA PILLAI, PROPRIETOR, PRASANTHI CASHEW COMPANY, KOLLAM - RESIDING AT HARISREE, KOCHUPILAMOODU, KOLLAM.

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BY ADVS.SRI.N.D.PREMACHANDRAN SRI.D.AJITHKUMAR

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RESPONDENTS/JUDGMENT DEBTORS/DEFENDANT & ADDL. DEFENDANT:

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1 SUJIR GANESH NAIK, PROPRIETOR S.G.N.CASHEW COMPANY, RESIDING AT SUJIR VILLA, MUNDAKKAL WEST, KOLLAM, PIN-691001 (DIED)

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2 GEETHANJALI PAI, W/o. N. MOHAN PAI, SUJIR VILLA, MUNDAKKAL WEST, KOLLAM, PIN-691001. BY ADV. SRI.K.SUBASH CHANDRA BOSE

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 17.10.2018, ALONG WITH OP(C)No.50/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P.(C) Nos.50 & 56/2017

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JUDGMENT

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The petitioners came up with these two petitions challenging Exhibit P11 orders passed by the learned Additional Sub Court, Kollam, in E.P.No.16/2010 in O.S.No.362/2002 and E.P.No.21/2010 in O.S.No.360/2002, dated 7.10.2016. The orders were passed accepting the security furnished by the judgment debtors for lifting the attachment over immovable properties. Two decrees were passed. One is for Rs.30,47,604/- with 6% interest. Execution application was filed in E.P.No.16/2010 for a total amount of Rs.46,24,577/- with future interest. In the other suit in O.S.No.360/2002, a decree for realization of Rs.29,70,000/- was also passed which was put in execution. In both the execution petitions, security was furnished in order to lift attachment over immovable properties. The property furnished comes to 12.13 Ares and the building situated therein. Two certificates were produced to show the market value of the property. The judgment debtors produced Exhibit P9 valuation certificate issued by a private agency/Chartered

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O.P.(C) Nos.50 & 56/2017

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Accountant, by which the property was assessed for a total amount of Rs.2,58,40,000/-, but in the certificate issued by the Tahsildar the property was assessed only for Rs.63,68,250/- and the building was separately assessed for Rs.15,61,516/-. The Lower Court, based on the documents produced, arrived at a conclusion that the security furnished is sufficient to cover both the decrees, which is under challenge before this Court.

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Going through the orders in Exhibit P11 it is well clear that the issue regarding the acceptability of security was answered by the learned Sub Judge based on two set of documents, one is drawn by the Tahsildar (Revenue Authority) and the other by a private agency (a Chartered Accountant) and arrived at a conclusion that the security furnished is sufficient. It is a finding on the facts involved in the case. The finding rendered by the Lower Court based on the factual aspects cannot be interfered with under Article 227 of the Constitution of India, unless there is compelling reason showing that irrelevant aspects were accepted by the Lower Court ignoring the legal provisions settled. While dealing with a petition under Article 227 of Constitution of India, the jurisdiction of this Court is so limited to see whether there is any flagrant violation in exercise of jurisdiction, miscarriage of justice or patent irregularity or illegality writ large on its face. No such case was brought to the notice

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O.P.(C) Nos.50 & 56/2017

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of this Court. The remedy available to the parties lies somewhere else and not by way of a petition under Article 227 of Constitution of India. Hence, deserves only dismissal and I do so, but without prejudice to the right of parties to agitate the issue as per the lex fori-lex locci, if so desires and permissible. No costs.

Sd/-

P.SOMARAJAN

JUDGE

DMR/-

O.P.(C) Nos.50 & 56/2017

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APPENDIX OF OP(C) No.50/2017

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PETITIONER'S EXHIBITS:

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EXHIBIT	P1		A COPY OF THE ORDER ON IA NO. 4395 OF 2010 IN RFA 811 OF 2010 DATED 31-3-2011.
EXHIBIT	P2		A COPY OF THE ORDER ON IA NO 4395 OF 2011 IN RFA 811 OF 2010 DATED 3-08-2016.
EXHIBIT	P3		A COPY OF THE APPLICATION DATED 31.08.2016 FILED BY THE RESPONDENT.
EXHIBIT	P4		A COPY OF THE SETTLEMENT DEED DATED 20-09-2002.
EXHIBIT	P5		A COPY OF THE TAX RECEIPT DATED 20-09-2016.
EXHIBIT	P6		A COPY OF THE ENCUMBRANCE CERTIFICATE OF THE PROPERTY DATED 7-09-2016.
EXHIBIT	P7		A COPY OF THE VALUATION CERTIFICATE FILED BY THE RESPONDENT DATED 26-09-2016.
EXHIBIT	P8		A COPY OF THE WRITTEN OBJECTION DATED 9-2016 FILED BY THE PETITIONER.
EXHIBIT	P9		A COPY OF THE VALUATION CERTIFICATE OF THE LAND ISSUED BY THE TAHSILDAR, KOLLAM, DATED 10.2.2011.
EXHIBIT	P10		A COPY OF THE VALUATION CERTIFICATE OF THE BUILDING ISSUED BY THE SUPERINTENDING ENGINEER PWD, DATED 19-03-2011.
EXHIBIT	P11		A COPY OF THE ORDER IN EP 16/2010 IN OS 362/2002 DATED 7-10-2016 PASSED BY THE ADDITIONAL SUB COURT, KOLLAM
RESPONDE	NTS'	EXHIBITS	: NIL.
			// TRUE COPY //
			P.A. TO JUDGE

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O.P.(C) Nos.50 & 56/2017

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PETITIONER'S EXHIBITS:

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EXHIBIT P1: A COPY OF THE ORDER ON IA NO.190 OF 2011 IN RFA 37 OF 2011 DATED 8.4.2011. EXHIBIT P2: A COPY OF THE ORDER ON IA NO.190 OF 2011 IN RFA 37 OF 2011 DATED 3.8.2016. EXHIBIT P3: A COPY OF THE APPLICATION DATED 31.08.2016 FILED BY THE RESPONDENT. EXHIBIT P4: A COPY OF THE SETTLEMENT DEED DATED 20.09.2002. EXHIBIT P5: A COPY OF THE TAX RECEIPT DATED 20.09.2016. EXHIBIT P6: A COPY OF THE ENCUMBRANCE CERTIFICATE OF THE PROPERTY DATED 07.09.2016. EXHIBIT P7: A COPY OF THE VALUATION CERTIFICATE FILED BY THE RESPONDENT DATED 26.09.2016. EXHIBIT P8: A COPY OF THE WRITTEN OBJECTION DATED 9.2016 FILED BY THE PETITIONER. EXHIBIT P9: A COPY OF THE VALUATION CERTIFICATE OF THE LAND ISSUED BY THE TAHSILDAR, KOLLAM, DATED 10.2.2011. EXHIBIT P10: A COPY OF THE VALUATION CERTIFICATE OF THE BUILDING ISSUED BY THE SUPERINTENDING ENGINEER PWD, DATED 19.03.2011. EXHIBIT P11: A COPY OF THE ORDER IN EP 21/2010 IN OS 360/2002 DATED 7.10.2016 PASSED BY THE ADDITIONAL SUB COURT, KOLLAM.

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RESPONDENTS'EXHIBITS : NIL.

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// TRUE COPY // P.A. TO JUDGE

K.R Ushasree v. Sujir Ganesh Naik

Case brief

What is this about?

What did the court decide?

K.R Ushasree v. Sujir Ganesh Naik

Case brief

What is this about?

What did the court decide?

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