Allowed

Dr.Jaya Sivadavamani v. Dr.Vijayakumar

Kerala HC14 Sept 2022FAO/79/2022

Case brief

AI extract

What is this about?

This appeal challenges the absolute attachment order in a specific performance suit regarding a disputed property sale agreement. The High Court set aside the impugned order, directing the lower court to reconsider the application afresh in light of disputed agreement validity, forged signature allegations, and ownership transfer issues.

What did the court decide?

Impugned order of attachment set aside; Sub Court directed to reconsider application afresh within four weeks; existing attachment continues pending final decision.

Dr.Jaya Sivadavamani Vs Dr.Vijayakumar — Contract and Commercial Disputes | Kerala HC (2022)

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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 A.MUHAMED MUSTAQUE

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THE HONOURABLE MRS. JUSTICE SOPHY THOMAS

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WEDNESDAY, THE 14^TH DAY OF SEPTEMBER 2022 / 23RD BHADRA,

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1944

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FAO NO.79 OF 2022

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AGAINST THE ORDER DATED 08.04.2022 IN I.A.NO.1426/2020 IN O.S.NO.123/2020 OF ADDITIONAL SUB COURT, PALAKKAD

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APPELLANT/RESPONDENT/DEFENDANT:

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DR.JAYA SIVADAVAMANI, AGED 78 YEARS, W/O. LATE DR.SIVADAVAMANI, 'CAMELOT', CONVENT ROAD, KODAIKKANAL, DINDIGUL DISTRICT, TAMIL NADU-624 101.

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BY ADV.DENU JOSEPH

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RESPONDENT/PETITIONER/PLAINTIFF:

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DR.VIJAYAKUMAR, AGED 65 YEARS, S/O.APPU NAIR, ANUGRAHA, PANAPANTHAL ROAD, PUTHUPPARIYARAM, PALAKKAD, PIN-678 733.

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(ADDRESS OF THE RESPONDENT/PLAINTIFF IS CORRECTED BY ADDING PINCODE-678733 AS PER THE ORDER DATED 29.6.2022)

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BY ADV BABU S. NAIR

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THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 14.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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F.A.O.No.79/2022 2

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JUDGMENT

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A.Muhamed Mustaque, J .

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This appeal arises from an order of the Sub Court, Palakkad, in an application for attachment before the judgment. The defendant aggrieved by the order of absolute attachment has come up with this appeal. The plaintiff approached the Sub Court for the recovery of Rs.49,00,000/together with interest. The parties are referred to with the status in the court below. According to the plaintiff, he agreed to purchase the property belonged to the defendant situated in the State of Tamil Nadu for a sum of Rs.59,90,000/-. The total extent of the land involved for sale consideration is 1.83 Acres.

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The plaintiff approached the court for the recovery of the advance amount of Rs.49,00,000/-. According to the plaintiff, he paid Rs.49,00,000/- on the condition that the defendant would perform her part of the agreement. The agreement was entered on 14.10.2019.

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A copy of the sale agreement is placed before us. It is stated in the agreement that Rs.49,00,000/- has been

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F.A.O.No.79/2022 3

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paid on different occasions.

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The defendant, on entering appearance, disputed

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the existence of the agreement and contended that the signature has been forged. It is also contended that the property no longer belonged to her and it has been settled in favour of her adopted son in the year 2015.

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The court granted an order of attachment

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initially ex parte, and thereafter, after adverting to the objections of the defendant, passed a detailed order on 08.4.2022, making the order of attachment absolute. This order is impugned in this appeal by the defendant.

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Heard the learned counsel on both sides.

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The short point that arises for consideration is

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whether this Court is required to interfere with the impugned order or not. The court cannot order attachment in a routine manner without an application of mind as to the prima facie case made out in the plaint. The court has to satisfy that the plaintiff had made out a prima facie case and there is a likelihood of alienating or transferring the property before the decree is passed in

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F.A.O.No.79/2022 4

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the matter. In this case, the existence of the agreement has been disputed and the defendant contends that the signature therein is forged. When a huge sum has been parted away, and the existence of the agreement of sale itself is disputed, the court has to form an opinion as to the parting of Rs.49,00,000/- with some evidence before it. In this case, the court attempts to secure Rs.49,00,000/alleged to have been paid by the plaintiff. The payment itself is in dispute as well as the agreement. In such a case, there must be some evidence before the court to prove payment of Rs.49,00,000/- to form a prima facie case.

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It is also pertinent to note that the defendant

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had contended that she has assigned the property in the year 2015. It is now stated before us that the assignment was in favour of her adoptive son. The court also, in such circumstances, has to find that the property stands in the name of the defendant before passing an order of attachment. These two vital aspects have not been adverted to in this matter. It is appropriate that the matter be revisited after allowing both parties to bring in any material before the court below to pass appropriate orders

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F.A.O.No.79/2022 5

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in the application filed by the plaintiff for attachment. We, therefore, set aside the impugned order and direct the Sub Court, Palakkad, to reconsider the application afresh and pass appropriate orders within a period of four weeks. To enable the reconsideration as above, we order that the attachment already passed in the matter will continue till a final decision is taken in this matter.

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The F.A.O. is disposed of as above.

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Sd/-

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A.MUHAMED MUSTAQUE

JUDGE

Sd/-

SOPHY THOMAS

JUDGE

Dr.Jaya Sivadavamani v. Dr.Vijayakumar

Case brief

What is this about?

What did the court decide?

Dr.Jaya Sivadavamani v. Dr.Vijayakumar

Case brief

What is this about?

What did the court decide?

What the court decided

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