Allowed

P.C. Herian v. (Decree Holder) Muthoot Vehicle and Asset Finance Ltd.

Kerala HC26 Feb 2024CRP/117/2020

Case brief

AI extract

What is this about?

The High Court of Kerala, in a civil revision petition, held that the petitioner could be afforded one more opportunity to adduce evidence in the underlying claim petition, subject to payment of costs for laches caused by repeated absences.

What did the court decide?

Petitioner was allowed to adduce evidence if he pays Rs. 25,000 costs within 3 weeks; matter remanded to District Court.

P.C. Herian Vs (Decree Holder) Muthoot Vehicle and… — Execution and Attachment | Kerala HC (2024)

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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 C. JAYACHANDRAN

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MONDAY, THE 26^TH DAY OF FEBRUARY 2024 / 7TH PHALGUNA, 1945

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CRP NO. 117 OF 2020

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AGAINST THE ORDER/JUDGMENT EP 164/2013 OF ADDITIONAL DISTRICT

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COURT,KOTTAYAM

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REVISION PETITIONER/CLAIM PETITIONER:

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P.C. HERIAN AGED 58 YEARS S/O P.T.CHERIYAN, OCCUPATION BUSINESS, RESIDING AT PALATHARA HOUSE, 62/2776, THOTTAPALLI TEMPLE ROAD, ERAMALLOOR MURI, EZHUPUNNA VILLAGE, ERAMALLOOR P.O.CHERTHALA TALUK, ALAPPUZHA DISTRICT-688 537.

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BY ADV JOBY CYRIAC

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RESPONDENTS/DECREE HOLDERS & JUDGMENT DEBTORS:

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1 (DECREE HOLDER) MUTHOOT VEHICLE AND ASSET FINANCE LTD. (FORMERLY KNOWN AT MUTHOOT LEASING AND FINANCE LTD), MUTHOOT CHAMBERS, BANERJI ROAD, ERNAKULAM-682 031.

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2 (JD NO.1) BEENA, W/O ANIL, XIX/482, NEAR SILON KAVALA, KADUTHUTUTHI VILLAGE, VAIKOM TALUK, KOTTAYAM-686 604, FROM KADAVIL KANNITTAYIL, (KESAVANILAYAM), CHERTHALA NORTH MURI, CHERTHALA NORTH VILLAGE, ALAPPUZHA. 3 (JD NO 2) ANIL, S/O RAVEENDRAN, XIX/482, NEAR SILON KAVALA, KADUTHUTUTHI VILLAGE, VAIKOM TALUK, KOTTAYAM-686 604, FROM KADAVIL KANNITTAYIL, (KESAVANILAYAM), CHERTHALA NORTH MURI, CHERTHALA NORTH VILLAGE, ALAPPUZHA. 4 (JD NO 3), BABU R, S/O RAJAPPAN , NILKARTHIL HOUSE, SAVESSERRI KARA, KOKKOTHAMANGALAM VILLAGE, CHERTHALA TALUK, ALAPPUZHA-688 527.

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5 (JD NO 4) SREEKANTH, S/O SREEDHARAMENON, KOTHERRIL HOUSE, AMBILI NAGAR, TRIPUNITHURA VILLAGE, KANAYANNOOR TALUK, ERNAKULAM-682 301. BY ADVS. SRI.C.S.MANILAL G.HARIHARAN SRI.S.NIDHEESH PRAVEEN.H.(K/1441/2002) K.S.SMITHA(K/106/2012) V.R.SANJEEV KUMAR(K/000741/2017) B.R.SINDU(K/632/2002.)

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THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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C.R.P.No. 117 of 2020

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..2..

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O R D E R

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Dated this the 26^th day of February, 2024

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Petitioner herein is the claim petitioner in E.P.No.164/2013 in Arbitration Reference No.159/2011 of the Additional District Court-I, Kottayam. The Arbitration Award was passed for a sum of Rupees thirty lakhs. The claim petitioner claims to have purchased the property from the judgment debtors in the year 2014. The attachment was effected in the E.P. subsequent to the

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purchase by the claim petitioner. The decree holder/1^st respondent is canvassing a case that, the petitioner herein and the judgment debtors are colluding each other to defeat the claim of the 1^st respondent/decree holder. The matter was

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C.R.P.No. 117 of 2020

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..3..

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posted for evidence on 18.09.2019, as could be seen from paragraph no.4 of the impugned order. Thereafter, the matter was posted on three occasions, as final chance. However, the petitioner herein did not appear. On 20.11.2019, four documents were produced along with the certified copy of the title deed and a prayer was made to mark the document. In view of the objection made by the decree holder, the Court directed the claim petitioner to be present, to lead oral evidence. However, the claim petitioner was absent on the date on which the case was posted for oral evidence. In such circumstances, the learned District Judge found that the foundation to adduce secondary evidence has not been established and accordingly, the claim petition was dismissed.

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2. Having heard the learned counsel for the petitioner, the 1^st respondent and other

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C.R.P.No. 117 of 2020

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..4..

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respondents, this Court is of the opinion that, the petitioner can be afforded one more opportunity to adduce evidence in support of his case, so as to mark the certified copy of the sale deed produced on 20.11.2019, however, subject to payment of a cost of Rs.25,000/(Rupees twenty five thousand only) to the 1^st respondent herein. In awarding the cost, this Court notice that, the petitioner was not earnest in prosecuting his cause. He was absent on three occasions, besides being absent on the date on which he was directed to adduce oral evidence. There is laches on the part of the petitioner and the same can be condoned only on payment of the cost, as referred above.

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3. Accordingly, this Civil Revision Petition is allowed and the matter is remitted to the District Court-I, Kottayam for fresh consideration in accordance with law, subject to

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C.R.P.No. 117 of 2020

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..5..

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the condition that the petitioner pays a sum of Rs.25,000/- (rupees twenty five thousand only) to the first respondent herein, within a period of three weeks from today (26.02.2024). If the cost as directed above is paid, the learned Additional District Judge will provide one more opportunity

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to the petitioner herein, to adduce evidence in support of the claim petition. It has been agreed by the learned counsel for the petitioner that the petitioner will not seek any further adjournment in this regard, which submission is recorded. Once such evidence is adduced, the

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claim petition will be proceeded with in accordance with law.

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4. In case the petitioner fails to make the

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payment as directed above, the Civil Revision Petition will stand dismissed. All contentions are left open and it will be open for both parties to agitate their respective cause,

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C.R.P.No. 117 of 2020

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..6..

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untrammeled by any of the observations in the impugned order.

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The Civil Revision Petition is disposed of, as

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above.

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Sd/-

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C. JAYACHANDRAN JUDGE

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C.R.P.No. 117 of 2020

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..7..

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APPENDIX OF CRP 117/2020

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RESPONDENT ANNE	XURES
Annexure I	A TR	UE COPY	OF THE ORDER	DATED
	22,03,	2021 MAD	E IN E.P.NO.1	64/2013
	[ARB	REF.NO.1	59/2011] BEFOR	E THE
	ADDITI	ONAL DIST	RICT COURT-I, KOT	TAYAM
Annexure II	. A	TRUE COP	Y OF THE ORDER	DATED
	20.01.	2024 MAD	E IN E.P.NO.1	64/2013
	[ARB	REF.NO.	159/2011] BY	THE
	ADDITI	ONAL DIST	RICT COURT-I, KOT	TAYAM
Annexure III	A TRUE	COPY OF	THE PROCLAMATION	NOTICE
	DATED DISTRI	02.02.202 CT COURT-	4 BEFORE THE ADD I, KOTTAYAM	ITIONAL

P.C. Herian v. (Decree Holder) Muthoot Vehicle and Asset Finance Ltd.

Case brief

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P.C. Herian v. (Decree Holder) Muthoot Vehicle and Asset Finance Ltd.

Case brief

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