Allowed

Aby K.Jacob v. Chacko P.Varghese

Kerala HC20 Oct 2021FAO/105/2020

Case brief

AI extract

What is this about?

The High Court of Kerala allowed an appeal against the dismissal of a before-judgment attachment application in a cheque recovery suit, restoring it to the trial court. The appeal against the dismissal of the temporary injunction application was dismissed.

What did the court decide?

Attachment before judgment application dismissed by lower court set aside and restored. Temporary injunction application dismissed by lower court stands confirmed.

Aby K.Jacob Vs Chacko P.Varghese — Cheque Dishonour | Kerala HC (2021)

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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 20^TH DAY OF OCTOBER 2021 / 28TH ASWINA, 1943

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FAO NO. 105 OF 2020

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AGAINST THE ORDER DATED 08/10/2020 IN IA 1/2020 IN OS 17/2020 OF

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SUB COURT, THIRUVALLA

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APPELLANTS/PETITIONERS/PLAINTIFFS:

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1 ABY K.JACOB, AGED 51,EX-GULF AND BUSINESS, S/O.LATE K.C.ABRAHAM, KARIMALATHU HOUSE, MADUMTHUMBHAGOM, KEEZHIKKARA MURI, PURAMATTOM VILLAGE, MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT. 2 MERINA K.ABY, AGED 48, HOMEMAKER AND STAGE CARRIAGE OPERATOR, W/O.ABY K.JACOB, KARIMALATHU HOUSE, MADUMTHUMBHAGOM, KEEZHIKKARA MURI, PURAMATTOM VILLAGE, MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT. BY ADVS.SRI.CHERIAN GEE VARGHESE SRI.P.HARIDAS SRI.BIJU HARIHARAN SRI.R.B.BALACHANDRAN SRI.RENJI GEORGE CHERIAN SRI.P.C.SHIJIN SRI.RISHIKESH HARIDAS

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RESPONDENTS/RESPONDENTS/DEFENDANTS

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1 CHACKO P.VARGHESE, AGED ABOUT 52, BUSINESS, S/O.LATE VARGHESE, KULATHUMURIYIL HOUSE, ERAVIPEROOR P.O., ERAVIPEROOR MURI, ERAVIPEROOR VILLAGE, THIRUVALLA TALUK, NOW RESIDING AT CHERUKARA HOUSE, CHUMATHRA P.O., CHUMATHRA MURI, KUTTAPUZHA VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT-689 103.

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2 SHOBHANA KOSHY, AGED ABOUT 60, HOMEMAKER, W/O.1ST DEFENDANT, RESIDING AT KULATHUMURIYIL HOUSE, ERAVIPEROOR P.O., ERAVIPEROOR MURI, ERAVIPEROOR VILLAGE, THIRUVALLA TALUK, NOW RESIDING AT CHERUKARA HOUSE, CHUMATHRA P.O., CHUMATHRA MURI, KUTTAPUZHA VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT-689 103.

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3 SRUTHI SUBASH, AGED ABOUT 30, W/O.SUBASH, MELETHU PUTHENVEEDU, KAVIYOOR P.O., PADINJATTUMCHERRY MURI, KAVIYOOR VILLAGE, THIRUVALLA TALUK-689 103. BY ADV SRI.K.N.RADHAKRISHNAN(THIRUVALLA)

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THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 20.10.2021, ALONG WITH FAO.106/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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[FAO Nos.105/2020, 106/2020] 2

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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 20^TH DAY OF OCTOBER 2021 / 28TH ASWINA, 1943

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FAO NO. 106 OF 2020

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AGAINST THE ORDER DATED 08/10/2020 IN IA 2/2020 IN OS 17/2020 OF SUB COURT, THIRUVALLA

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APPELLANTS/PETITIONERS/PLAINTIFFS

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1 ABY K.JACOB, AGED 51, EX-GULF AND BUSINESS, S/O LATE K.C.ABRAHAM, KARIMALATHU HOUSE, MADUMTHUMBHAGOM, THEKKEKARA MURI, PURAMATTOM VILLAGE, MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT

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2 MERINA K ABY, AGED 48, HOMEMAKER AND STAGE CARRIAGE OPERATOR, W/O ABY K .JACOB, KARIMALATHU HOUSE, MADUMTHUMBHAGOM, THEKKEKARA MURI, PURAMATTOM VILLAGE, MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT

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BY ADVS. CHERIAN GEE VARGHESE SRI.P.HARIDAS SRI.BIJU HARIHARAN SRI.R.B.BALACHANDRAN SRI.RENJI GEORGE CHERIAN SRI.P.C.SHIJIN SRI.RISHIKESH HARIDAS

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RESPONDENTS/RESPONDENTS/DEFENDANTS

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1 CHACKO P.VARGHESE, AGED ABOUT 52, BUSINESS, S/O LATE VARGHSE, KULATHUMURIYIL HOUSE, ERAVIPEROOR P.O., ERAVIPEROOR MURI, ERAVIPEROOR VILLAGE, THIRUVALLA TALUK, NOW RESIDING AT CHERUKARA HOUSE, CHUMATHRA P.O., CHUMATHRA MURI, KUTTAPUZHA VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRIT-689 103.

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2 SHOBHANA KOSHY, AGED ABOUT 60, HOMEMAKER, W/O 1ST DEFENDANT, RESIDING AT

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[FAO Nos.105/2020, 106/2020] 3

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KULATHUMURIYIL HOUSE, ERAVIPEROOR P.O, ERAVIPEROOR MURI, ERAVIPEROOR VILLAGE, THIRUVALLA TALUK, NOW RESIDING AT CHERUKARA HOUSE, CHUMATHRA P.O.CHUMATHRA MURI, KUTTAPUZHA VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT-689 103.

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3 SRUTHI SUBASH, AGED ABOUT 30, W/O SUBASH, MELETHU PUTHENVEEDU, KAVIYOOR P.O.PADINJATTUMCHERRY MURI, KAVIYOOR VILLAGE, THIRUVALLA TALUK-689 103.

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R1 BY ADV SRI.K.N.RADHAKRISHNAN(THIRUVALLA)

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THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 20.10.2021, ALONG WITH FAO.105/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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[FAO Nos.105/2020, 106/2020] 4

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JUDGMENT

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Two applications were maintained in I.A.No.1/2020 and 2/2020 in O.S.No.17/2020 by the plaintiffs for attachment before judgment and for temporary injunction. Both the applications were dismissed by the trial court, against which the

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plaintiffs/petitioners came up.

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The suit is one for recovery of money based on a cheque, which comes to Rs.30,37,172/-. The cheque was issued under a settlement dated 30/04/2020. The original cheque was produced. What is raised against the said applications is the bar of limitation and also disputing the due execution.

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In the instant case, the original of the cheque was produced, which contains a signature as that of the drawer. Admittedly, it was drawn from the account maintained by the first defendant. Then it is a matter of evidence and when there is prima facie evidence in support of the claim of plaintiff

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[FAO Nos.105/2020, 106/2020] 5

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coupled with any of the grounds enumerated under Order XXXVIII C.P.C., the court is not expected to conduct a roving enquiry causing prejudice to the

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parties, except when there is a claim petition, which

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has to be disposed of in accordance with the mandate under Order XXI Rule 58 C.P.C.. Hence, the dismissal

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of attachment application cannot be sustained. The

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same will stand set aside restoring the attachment before judgment over the property scheduled. It is

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not at all necessary to pass any injunction order under Order XXXIX C.P.C. Hence, the dismissal of

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the other application will stand confirmed.

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In the result, F.A.O. No.106/2020 will stand

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allowed and F.A.O.No.105/2020 will stand dismissed accordingly. The trial court shall expedite the disposal of the suit within six months from the date of receipt of a copy of this judgment.

Sd/-

P.SOMARAJAN

JUDGE

msp

Aby K.Jacob v. Chacko P.Varghese

Case brief

What is this about?

What did the court decide?

Aby K.Jacob v. Chacko P.Varghese

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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