Dismissed

Tamilnad Mercantile Bank v. M/S the Woodind

Kerala HC5 Mar 2024OP(C)/1993/2023

Case brief

AI extract

What is this about?

The petitioner, a bank, filed an Original Petition to quash a condition imposed by the Sub Court requiring it to furnish security while lifting an attachment on mortgaged property. The High Court held that the bank had no privity with the plaintiff's primary debtor and quashed the security condition, ordering the attachment to be lifted without any conditions.

What did the court decide?

Set aside the condition to furnish security in the order dated 03.07.2023 and direct the attachment to be lifted without any conditions.

Tamilnad Mercantile Bank Vs M/S the Woodind — 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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TUESDAY, THE 5^TH DAY OF MARCH 2024 / 15TH PHALGUNA, 1945

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OP(C) NO. 1993 OF 2023

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AGAINST THE ORDER/JUDGMENT DATED 03.07.2023 IN COMMERCIAL SUIT NO.2 OF 2020 OF ASSISTANT SESSIONS COURT/PRINCIPAL SUB COURT / COMMERCIAL COURT, ERNAKULAM

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PETITIONER/2ND RESPONDENT/2ND DEFENDANT:

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TAMILNAD MERCANTILE BANK NEAR SUCHINDRA HOSPITAL, KACHERIPPADY, CHITTOOR ROAD, ERNAKULAM REPRESENTED BY ITS SENIOR MANAGER, MR. R.S.RAJAMANIKANDAN, S/O MR R. SUTHANTHIRAKUMAR, AGED 45 YEARS, PIN - 682018

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BY ADVS. GIGIMON ISSAC TOBIAS TOGI MATHEW

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RESPONDENTS/PLAINTIFFS/DEFENDANT NO.1:

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1 M/S THE WOODIND A REGISTERED PARTNERSHIP FIRM, HAVING OFFICE AT VII/633B, IX/21, 22/9, SEAPORT-AIRPORT ROAD, BMC P.O, KAKKANAD, REPRESENTED BY ITS MANAGING PARTNER, RUSSEL.M.EASA, AGED 50, S/O P.S.MOHAMMED, RESIDING AT 3/492, VALAVI VAULT, CHEMBUMUKKU, BMC P.O, KAKKANAD, ERNAKULAM, PIN - 682030

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2 RUSSEL.M.EASA AGED 50 YEARS S/O P.S.MOHAMMED, MANAGING PARTNER, THE WOODIND, A REGISTERED PARTNERSHIP FIRM, HAVING OFFICE AT VII/633B, IX/21, 22/9, SEAPORT-AIRPORT ROAD, BMC P.O, KAKKANAD, RESIDING AT 3/492, VALAVI VAULT, CHEMBUMUKKU, BMC P.O, KAKKANAD, ERNAKULAM, PIN - 682030

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3 SAVITHA RUSSEL AGED 42 YEARS W/O RUSSEL.M.EASA,PARTNER, THE WOODIND, A REGISTERED PARTNERSHIP FIRM, HAVING OFFICE AT VII/633B, IX/21, 22/9, SEAPORT-AIRPORT ROAD, BMC P.O, KAKKANAD, RESIDING AT 3/492, VALAVI VAULT, CHEMBUMUKKU, BMC P.O, KAKKANAD, ERNAKULAM, PIN - 682030

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4 RASHEED V.P AGED 61 YEARS S/O PAREED KHAN, PROPRIETOR, E-ORIENTAL TIMBERS, N.H BYE PASS, OPP. CHAITHANYA MARBLES, EDAPPALLY, KOCHI-24, PIN - 682024

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O.P.(C).No.1993 of 2023

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..2..

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BY ADVS. Martin Jose P M.S.UNNIKRISHNAN M.ARDRA KRISHNAN(K/000990/2017) ALEENA JOSE(K/1082/2023) K.SUNIL(K/1052/2010) P.PRIJITH(K/233/2005) THOMAS P.KURUVILLA(K/420-B/2005) R.GITHESH(K/630/2002) AJAY BEN JOSE(K/729/2012) MANJUNATH MENON(K/000474/2015) SACHIN JACOB AMBAT(K/734/2016) ANNA LINDA EDEN(K/1201/2020) HARIKRISHNAN S.(K/497/2019)

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P.(C).No.1993 of 2023

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..3..

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J U D G M E N T

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Dated this the 5^th day of March, 2024

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Petitioner is the 2^nd defendant in the suit

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C.S.No.2/2020 pending before the Principal Sub Court, Ernakulam. Petitioner is aggrieved by Ext.P8 order, which fastened a condition to furnish security in allowing petitioner's application to lift the attachment over the petition scheduled property.

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2. Heard the learned counsel for the petitioner and the learned counsel appearing for the respondents 1 to 3, who are the plaintiffs in the suit. Other respondents, though served, are not represented before this Court, when the matter was

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taken up for consideration.

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O.P.(C).No.1993 of 2023

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..4..

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3. The suit above referred is one for recovery of money instituted by the plaintiffs (respondents 1 to 3 herein) as against the 1^st defendant (4^th respondent herein). The 2^nd defendant in the suit (petitioner herein) is the Bank which advanced loan/credit facility to the 1^st defendant/4^th respondent. The plaintiffs' Banker issued a Letter of Credit to the 2^nd defendant/Bank (petitioner herein), which was encashed by the 2^nd defendant. However, the 1^st defendant failed to supply goods, in respect of which claim, the money suit has been filed. The petitioner herein (2^nd defendant) was impleaded in the suit only for the reason that a Letter of Credit was encashed by the 2^nd defendant. Ext.P6 is the judgment passed by this Court in an Original Petition filed by the 1^st defendant in the suit (4^th respondent herein), wherein the right of the petitioner/Bank to sell the properties

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mortgaged to it by the 1^st defendant was

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stipulated to be done one after the other, after

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O.P.(C).No.1993 of 2023

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..5..

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two items of properties (mentioned in Ext.P12 therein) is sold first. It may incidentally be stated that, 16 items of properties have been mortgaged with the petitioner/Bank in respect of the loans availed by the 1^st defendant in the suit. Ext.P6 was later modified by Ext.P7, clarifying that, the petitioner Bank is at liberty to sell the next item of property, if the sale in respect of the previous item did not fructify.

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4. The present order was passed when the petitioner filed an application to lift the attachment in the suit with respect to property described as item no.5, so as to enable the sale of the same. Though the application was allowed vide Ext.P8 order, the learned Sub Judge directed the attachment to be lifted, subject to the condition that the Petitioner/bank furnish security for the value of the property. It is this condition, which is under challenge in this instant Original Petition.

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O.P.(C).No.1993 of 2023

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..6..

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5. Having heard the learned counsel appearing for the respective parties, this Court finds that the condition imposed in Ext.P8 to furnish security cannot be sustained. It is relevant to notice that the claim for recovery of money is based on the transaction between the plaintiff and the 1^st defendant and that there is no privity of contract by and between the plaintiff and the 2^nd defendant (petitioner herein). Therefore, the 2^nd defendant/petitioner cannot be directed to furnish security for the amount allegedly due from the 1^st defendant to the plaintiff.

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6. In the circumstances, Ext.P8, to the extent it directs furnishing the value of the property as security cannot be sustained. Ext.P8 is modified, as one directing the attachment to be lifted,

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without being subjected to any condition, whatsoever.

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O.P.(C).No.1993 of 2023

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..7..

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The Original Petition is disposed of as above.

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Sd/-

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C. JAYACHANDRAN JUDGE

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O.P.(C).No.1993 of 2023

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..8..

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PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ATTACHMENT APPLICATION FILED BY THE RESPONDENTS 1 TO 3 DATED 18.06.2020 Exhibit P2 TRUE COPY OF WRITTEN STATEMENT BY THE PETITIONER DATED 13.08.2021 Exhibit P3 TRUE COPY OF THE SALE NOTICE FOR THE PROPERTY HAVING 12.15 ARES DATED 08.02.2023 FOR PUBLIC AUCTION Exhibit P4 TRUE COPY OF THE APPLICATION FOR LIFTING THE ORDER OF ATTACHMENT VIDE. I.A NO. 10/2023 BEFORE THE HON'BLE SUB COURT (COMMERCIAL COURT), ERNAKULAM DATED 27.02.2023 Exhibit P5 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY RESPONDENTS 1 TO 3 IN I.A NO. 10/2023 BEFORE THE HON'BLE SUB COURT (COMMERCIAL COURT) DATED 07.03.2023 Exhibit P6 TRUE COPY OF THE JUDGMENT PASSED IN WP(C) NO. NO.21750/2019 DATED 19.08.2019 Exhibit P7 TRUE COPY OF THE MODIFIED ORDER IN I.A NO.1/2021 IN W.P.(C) NO.21750/2019 DATED 01.11.2021 Exhibit P8 TRUE COPY OF THE ORDER PASSED BY LEARNED SUB JUDGE IN I.A 10/2023 DATED 03.07.2023

Tamilnad Mercantile Bank v. M/S the Woodind

Case brief

What is this about?

What did the court decide?

Tamilnad Mercantile Bank v. M/S the Woodind

Case brief

What is this about?

What did the court decide?

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