Allowed

George Jacob Pulickal v. Surendhu Govindan

Kerala HC5 Feb 2018OP(C)/66/2018

Case brief

AI extract

What is this about?

The High Court of Kerala, under Article 227, allowed an original petition challenging an order that lifted a conditional attachment. The apex court set aside the lower court's order accepting title deeds as sufficient security without a valuation certificate, setting the matter aside for fresh consideration by the lower court. The judgment remitted the matter for a new hearing within weeks.

What did the court decide?

The impugned order lifting conditional attachment is set aside. I.A.No.6909/2017 is restored to the file of the lower court for fresh hearing and final disposal within 2-3 weeks.

George Jacob Pulickal Vs Surendhu Govindan — 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 ALEXANDER THOMAS

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MONDAY, THE 5TH DAY OF FEBRUARY 2018 / 16TH MAGHA, 1939

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OP(C).No. 66 of 2018 CMA (ARB) APPLN. NO.58/2017 OF THE HON'BLE IST ADDITIONAL DISTRICT COURT,ERNAKULAM

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PETITIONER:

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GEORGE JACOB PULICKAL, AGED 67, S/O.VARGHESE CHACKO, NO.9, QUEENS PARK VILLAS, EDAPPALLY.

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BY ADVS.SRI.DINESH R.SHENOY SRI.EBIN MATHEW

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RESPONDENT(S):

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1. SURENDHU GOVINDAN,

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AGED 42, S/O.LATE K.GOVINDAN, KARIKKAN HOUSE,

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ANCHAMPEEDIKA, KANNUR.

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2. M/S.HOUSE MASTER SERVICE PVT. LTD.,

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AT 37/1042 B, MATCH POINT BUILDING,

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SUBASH CHANDRA BOSE ROAD, ELAMKULAM,

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COCHIN-20, REPRESENTED BY ITS MANAGING DIRECTOR,

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SURENDHU GOVINDAN.

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R1 BY ADV. SMT.PRIYANKA RAVINDRAN R2 BY ADV. SRI.MILLU DANDAPANI

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 05-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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PBS

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OP(C).No. 66 of 2018 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT	P1	TRUE PHOTOCOPY OF CM (ARB) APPLICATION NO.58/2017, 1ST ADDITIONAL DISTRICT COURT, ERNAKULAM.
EXHIBIT	P2	TRUE PHOTOCOPY OF PETITION TO ADVANCE THE CASE AND TO LIFT CONDITIONAL ATTACHMENT FILED BY THE RESPONDENTS IN CM (ARB) APPLICATION NO.58/2017, DISTRICT COURT, ERNAKULAM.
EXHIBIT	P3	TRUE PHOTOCOPY OF SALE DEED NO.1172/2012, RAJAPURAM SRO.
EXHIBIT	P4	TRUE PHOTOCOPY OF SALE DEED NO.1454/2011, RAJAPURAM SRO.
EXHIBIT	P5	TRUE PHOTOCOPY OF POSSESSION CERTIFICATE DATED 4.5.2017.
EXHIBIT	P6	TRUE PHOTOCOPY OF FAIR VALUE NOTIFICATIONS DATED 14.12.2009 (3 IN NOS.).
EXHIBIT	P7	TRUE PHOTOCOPY OF SCHEDULE DATED NIL SUBMITTED BY THE RESPONDENTS.
EXHIBIT	P8	TRUE PHOTOCOPY OF SCHEDULE OF PROPERTIES DATED 28.12.2017 FILED BY THE RESPONDENTS IN IA NO.5995/2017 IN CM (ARB) APPLICATION NO.58/2017, DISTRICT COURT, ERNAKULAM.
EXHIBIT	P9	TRUE TYPED COPY OF THE ORDER DATED 6/1/2018 IN I.A.NO. 6909/2017 IN CMA (ARB) APPLIN.NO.58/2017 ON THE FILE OF 1ST ADDL.DISTRICT COURT, ERNAKULAM.

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RESPONDENT'S EXHIBITS

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EXHIBIT R2(A)	TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 2ND RESPONDENT IN ARB CM APPLY NO. 58/2017.
EXHIBIT R2(B)	TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 1ST RESPONDENT IN ARB CM APPLY NO. 58/2017.
EXHIBIT R2(C)	TRUE COPY OF THE IA.NO. 410/2018 ALONG WITH THE VALUATION CERTIFICATE DATED 16/02/2018.
EXHIBIT R2(D)	TRUE COPY OF THE SHOW CAUSE NOTICE DATED 04/12/2017 ISSUED BY THE HON'BLE DISTRICT JUDGE IN IA.NO. 5995/2017 IN CMA APPLN. ARB NO. 58/2017

/TRUE COPY/

PA TO JUDGE

PBS

ALEXANDER THOMAS, J.

O.P(C).No.66 Of 2018

Dated this the 5th day of February, 2018.

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J U D G M E N T

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The main prayers in this Original Petition (Civil) filed under the

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enabling provisions in Article 227 of the Constitution of India are as

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follows:

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“a) An order directing the 1st Additional District Court, Ernakulam to issue carbon copy of the order dated 6./1/2018 to the petitioner as expeditiously as possible and to keep the said order in abeyance till the petitioner gets sufficient opportunity to file appropriate proceedings therefrom.

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b) stay the operation of the order dated 6/1/2018 issued by the 1st Additional District Judge in IA No.5995/2017 in CMA(Arb)58/2017 on its file for two months.”

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Heard Sri.Dinesh R.Shenoy, learned counsel appearing for

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the petitioner, Smt. Priyanka Ravindran, learned counsel appearing for

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R-1 and Sri.Millu Dandapani, learned counsel appearing for R-2.

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3. This Court while admitting this Original Petition (Civil) on

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9.1.2018 has passed the interim order, which reads as follows:

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“Admit. Issue notices to the respondents by speed post returnable within 2 weeks. Petitioner will also serve notices on the respondents through the advocates appearing for those parties before the court below concerned and file memo regarding such service of notice.

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O.P(C).No.66 Of 2018

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Pending consideration of the Original Petition, it is ordered in the interest of justice that operation and enforcement of the order dated 6.1.2018 passed by the Additional District Court-I, Ernakulam in I.A.No.5995/2017 in C.M.A (Arb).No.58/2017 will remain stayed. This interim order will be in force for a period of one month.

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Registry will get a report from the Additional District Court-I, Ernakulam, as to whether orders are passed on Ext.P-2 I.A filed by the respondents to lift the attachment, etc. The said court is also directed to ensure that certified copy/carbon copy of the above said impugned order dated 6.1.2018 rendered by that court on the above said I.A.No.5995/2017 in C.M.A (Arb).No.58/2017 should be furnished to the petitioner in case an application in that regard is filed by the petitioner, which is in order. A copy of the impugned order dated 6.1.2018 should also be made available before this Court by that court through the Registry.

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The Registry will communicate a copy of the present order passed by this Court to the institutions mentioned in the schedule attached to Ext.P-1 C.M.A (Arb).No.58/2017 through a special messenger at the cost of the petitioner.”

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Pursuant to the direction issued by this Court, directing the

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court below to issue certified/carbon copy of the impugned order, the petitioner has secured a copy of the same. The petitioner's application for amendment of the Original Petition has been allowed as per separate order passed today in I.A.No.85/2018. The amended prayer in this Original Petition is as follows:

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“(a) Issue an order setting aside Exhibit P9 order dated 6/1/2018 passed by Addl. District Judge, Ernakulam.”

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The impugned Ext.P-9 order dated 6.1.2018 rendered by the Additional

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District Court-I, Ernakulam in I.A.No.6909/2017 in C.M.A. (Arb)No.58/2017 reads as follows:

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O.P(C).No.66 Of 2018

“ORDER

Application under Section 151 CPC to advance the hearing of the above case and to lift the conditional attachment ordered in IA.No.5995/2017 by accepting the security furnished.

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Short facts necessary for the disposal of the application are as follows: Petitioner herein is the 1st respondent in the above CMA (Arbitration). This Court vide order in IA.No.5995/2017 passed an exparte order of conditional attachment in respect of the amounts stand in the credit of the petitioner in various banks to the tune of Rs.39.96 lakhs. Subsequently, on 21/12/2017, this Court modified the order of attachment by directing the petitioner to furnish security to the tune of Rs.50 lakhs for the purpose of lifting the conditional attachment. Petitioner has got property measuring 4 acres in Sy.Nos.211/1, 211/2, 209, 210/1, 210/2, 210/3, 210/4, 210/5 situated in Hosdurg Taluk, Penathadi Village in Kasargod District. Petitioner had produced the original title deeds in respect of those properties which can be accepted as sufficient security for he purpose of lifting the attachment.

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Heard both counsel and perused the title deeds produced.

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The learned counsel appearing for the respondent submitted that the security furnished is not sufficient for the purpose of lifting the attachment. According to the learned counsel no valuation certificate produced by the petitioner in respect of those properties to ascertain the present market value of the properties covered under the title deeds produced. Secondly it is contended that even by referring to the consideration sown in those title deeds, it can be seen that total consideration paid in respect of those properties covered under those title deeds is about 15 lakhs. Thirdly the learned counsel appearing for the respondent submitted that though it is stated in the petition that the extent of the property is 4 acres, the extent mentioned in the title deeds together will not constitute 4 acres. Per contra, it is submitted from the side of the petitioner that even though this court directed to furnish security to the tune of Rs.50 lakhs, attachment was ordered only in respect of the amounts stand in the credit of the petitioner in various banks to the tune of less than Rs.40 lakhs. It is further submitted that the properties covered under the title deeds produced now will fetch more than Rs.50 lakhs and hence it can be treated as sufficient security. Learned counsel appearing for the respondent submitted that on verification of the description of the properties covered under those title deeds, it can be seen that most of the properties are wet lands without any road access and the document pertaining to the fair value produced by the petitioner is not sufficient to treat the same as sufficient security. After considering the rival contentions, I am of the view that most of the title deeds produced are of the year 2012 and previous years and

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O.P(C).No.66 Of 2018

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hence it can be inferred that there may be substantial increase in the market value of the properties covered under those title deeds as on this date. Mistake, if any, as to the extent of properties covered under the title deeds is my view, is irrelevant. However, reckoning the anxiety of the respondent as to the sufficiency of the security, I am of the view that conditional attachment can be lifted subject to terms.

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In the result, application is allowed as follows:

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The title deeds produced by the petitioner are accepted as sufficient security on condition that petitioner shall produce valuation certificate in respect of each item of properties within 3 weeks from this date.

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The conditional attachment ordered in I.A.No.5995/2017

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is hereby lifted.”

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It is the specific case of the petitioner that the value of

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the property furnished as security is much less than the security directed to be furnished and that Ext.P-9 order lifting the conditional attachment is not legally correct and proper to that extent. A reading of the impugned Ext.P-9 order would disclose that the court below has accepted the title deeds produced by R-2 herein/petitioner in the I.A, which was ordered as per Ext.P-9 as sufficient security on condition that the said party should produce valuation certificate in respect of each item of properties within 3 weeks from the date of the order.

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It is submitted by Sri.Millu Dandapani, learned counsel

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for R-2 herein, that after the issuance of Ext.P-9 order dated

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O.P(C).No.66 Of 2018

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6.1.2018, valuation certificate has been produced by R-2 herein along with Ext.R-2(c) affidavit before the court below to show that the value of the properties covered by the title deed offered as security constitute more than Rs.50 lakhs, etc. Sri.Dinesh R.Shenoy, learned counsel for the petitioner, submits that the petitioner has serious disputes about the correctness of the valuation shown in the said valuation certificate and he has already filed objections to the valuation certificate before the court below. The court below concerned will consider the rival contentions on both sides and then decide whether the value of the title deeds offered by R-2 would constitute sufficient security in the matter.

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Therefore, it is clear from a mere reading of Ext.P-9 order that R-2 has not produced valuation certificate in respect of each items of properties covered by Ext.P-9 order to enable the court below to apply its judicial mind and to satisfy whether the value of the properties covered by the title deeds produced by R-2 constitute sufficient security as ordered earlier. On this ground alone, this Court is of the considered opinion that the matter requires reconsideration by a remit. To enable such remit, Ext.P-9

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O.P(C).No.66 Of 2018

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order will stand set aside and I.A.No.6909/2017 filed by R-2 herein in C.M.A(Arb).No.58/2017 will stand restored to the file of the court below. The court below will consider the said I.A.No.6909/2017 afresh and pass orders on the same without much delay, preferably within a period of 2-3 weeks from the date of receipt of a copy of this judgment. The parties will appear before the court below on 12.2.2018.

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With these observations and directions, the aforecaptioned Original Petition (Civil) will stand finally disposed of.

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bkn/-

George Jacob Pulickal v. Surendhu Govindan

Case brief

What is this about?

What did the court decide?

George Jacob Pulickal v. Surendhu Govindan

Case brief

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