Dismissed¶¶50

Bindhu Babu v. Claudio Colangelo

Kerala HC19 Mar 2025OP(C)/2770/2023

Case brief

AI extract

What is this about?

Article 227; temporary injunction; concurrent findings of fact; limits on High Court supervisory jurisdiction; no appellate substitution; Estralla Rubber v. Dass Estate (P) LTD (2001) 8 SCC 97; OP(C) 2770/2023; OS 1507/2022 II Additional Munsiff Court Thiruvananthapuram; CMA 43/2023 Additional District Court-III; Ext.P4; Ext.P6; Italian coffee machine grinder refrigerator microwave oven; dismissed; Kerala High Court; Basant Balaji; 2025:KER:28022

What did the court decide?

When two courts below have concurrently found on facts that the ingredients for a temporary injunction favour the plaintiffs and discretion has been exercised in granting the injunction, this Court is not justified in taking a contrary view under Article 227 of the Constitution of India. ¶¶49

Bindhu Babu Vs Claudio Colangelo — Writ and Judicial Review | Kerala HC (2025)

What the court decided

AI extract

Outcome

Dismissed

¶¶50

Issue for consideration

Whether Ext.P4 order of the trial court granting a temporary injunction and Ext.P6 order of the District Court dismissing the defendant's appeal are liable to be set aside under Article 227 of the Constitution of India. +1 more

¶¶32

Court's answer

Both courts below found on facts that the three ingredients for the grant of a temporary injunction were in favour of the plaintiffs, and this Court declined to disturb that concurrent finding.

¶¶43

Ratio / Principle

¶¶49

Key takeaways

The High Court acting under Article 227 of the Constitution of India cannot exercise its power as an appellate court or substitute its own judgment in place of the subordinate court to correct an error which is not apparent on the face of the record.ratio¶¶49
Whether the amounts due to the 1st plaintiff as the value of the articles are payable is a question to be decided by the trial court after evidence; this Court did not decide it.obiter¶¶43

Detailed headnote1 paragraphs

High Court of Kerala (Basant Balaji J.), 19.03.2025 — OP(C) No.2770 of 2023 dismissed. Petitioner, defendant in OS No.1507 of 2022 of II Additional Munsiff Court, Thiruvananthapuram (suit for realisation of money and recovery of movables — Italian coffee machine, grinder, refrigerator, microwave oven), challenged under Article 227 of the Constitution of India Ext.P4 order dated 05.08.2023 granting the plaintiffs' temporary injunction in I.A.No.1/2022 and Ext.P6 order dated 22.11.2023 of Additional District Court-III, Thiruvananthapuram dismissing her appeal in CMA No.43/2023. Held: where two courts below concurrently find on facts that the three ingredients of a temporary injunction favour the plaintiffs and discretion is exercised in granting it, the High Court is not justified in taking a contrary view under Article 227, nor can it exercise appellate power or substitute its own judgment to correct an error not apparent on the face of the record (Estralla Rubber v. Dass Estate (P) LTD., (2001) 8 SCC 97, relied on). Whether the value of the articles is payable is left to the trial court to decide on evidence.

OPC 2770/2023

2025:KER:28022

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶5

PRESENT

¶6

THE HONOURABLE MR.JUSTICE BASANT BALAJI

¶7

WEDNESDAY, THE 19TH DAY OF MARCH 2025 / 28TH PHALGUNA, 1946

¶8

OP(C) NO. 2770 OF 2023

¶9

CMA NO.43 OF 2023 OF ADDITIONAL DISTRICT COURT (ADHOC) III,
THIRUVANANTHAPURAM ARISING OUT OF THE ORDER IN OS NO.1507 OF 2022 OF II
ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM

¶10

PETITIONER/S:

¶11

BINDHU BABU, AGED 40 YEARS
D/O MANIYAMMA, KALLUKUNNU VEEDU, VANDIPURA, PALYAMKUNNU P.O,
VARKALA, THIRUVANANTHAPURAM ., PIN - 695146

¶12

BY ADV LIJU. M.P

¶13

RESPONDENT/S:

¶14

1 CLAUDIO COLANGELO, AGED 71 YEARS
S/O GIOVANNI, BECO DA MOURA ENCANTADA 5 R/C ESQ A, 8800-665
TAVIRA, PORTUGAL; REPRESENTED THROUGH HIS POWER OF ATTORNEY
HOLDER S. AMBUJAKSHAN, AGED 68 YEARS, S/O MR. SADASIVAN
2/354CHARUVILA VEEDU, KEDAKULAM, HARIHARAPURAM P.O
THIRUVANANTHAPURAM, PIN - 695310

¶15

2 DHANYA MOL MANIYAMMA, AGED 25 YEARS W/O CLAUDIO COLANGELO, BECO DA MOURA ENCANTADA 5 R/C ESQ A, 8800-665 TAVIRA, PORTUGAL; REPRESENTED THROUGH HER POWER OF ATTORNEY HOLDER S. AMBUJAKSHAN, AGED 68 YEARS, S/O MR. SADASIVAN 2/354 CHARUVILA VEEDU, KEDAKULAM, HARIHARAPURAM P.O THIRUVANANTHAPURAM, PIN - 695310

¶16

BY ADVS.ANOOP BHASKAR
SATHYA SREEKUMARAN(K/003541/2022)
AMMU MANOHARAN NARAYANAN(K/683/2014)

¶17

THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 19.03.2025, THE COURT

¶18

ON THE SAME DAY DELIVERED THE FOLLOWING:

OPC 2770/2023

2025:KER:28022

JUDGMENT

(Dated this the 19^th day of March 2025)

¶24

The petitioner is the defendant in the suit. The suit was filed for the realisation of money and for recovery of movables. It was filed before the Munsiff court, Thiruvananthapuram, as, according to the plaintiffs, part of the cause of action arose within the territorial jurisdiction of the Munsiff court, Thiruvananthapuram.

¶25

On receipt of summons, the defendant entered appearance and filed I.A.No.6 of 2023 to hear and consider the maintainability of suit as a preliminary issue. The trial court heard the maintainability petition and by order dated 4.4.2023, held that the question of territorial jurisdiction is a mixed question of law and fact and, therefore, it cannot be disposed of

¶26

as a preliminary issue. Thus, the petition was dismissed.

¶27

¶28

OPC 2770/2023

¶29

2025:KER:28022 3. Along with the suit, I.A.No.1 of 2022 was filed for a

¶30

temporary injunction restraining the defendant from using the Italian coffee machine, grinder, Refrigerator and Microwave Oven and ensuring their proper storage. Ext.P4 order was passed in I.A.No.1 of 2022, allowing the injunction.

¶31

An ad interim injunction was granted, which was after filing of a detailed objection by the defendant. By Ext.P6 judgment, the District Judge dismissed the appeal and directed

¶32

the Munsiff court to dispose of the suit as expeditiously as possible if both sides co-operate untrammelled by any of the observations in the impugned order. The petitioner has approached this court under Article 227 of the Constitution of India, to set aside Ext.Nos.P4 and P6.

¶33

The second prayer in the suit is to direct the defendant

¶34

to return the Italian coffee machine, grinder, refrigerator and

¶35

¶36

OPC 2770/2023

¶37

2025:KER:28022 microwave oven to the 1^st plaintiff. In the written objection filed to the application, the petitioner admits that the coffee machine and grinder were purchased by the plaintiff from Italy. The petitioner’s case is that she had paid the value of the same to the respondents. It is also admitted that at the request of the petitioner, the plaintiff bought certain items from the Amazon e-commerce platform because she did not have any ideas regarding online purchases at that time. So, practically, the articles that are directed to be returned as per relief No.2 are purchased by the respondents and given to the petitioner.

¶38

The question whether the amounts due to the 1^st plaintiff /1^st respondent as value of the articles is to be paid or not, is a question to be decided by the trial court, after evidence. Prima facie, the court found that the articles belong to 1^st plaintiff as he purchased the same with his funds. Therefore, the

¶39

¶40

OPC 2770/2023

¶41

2025:KER:28022 court held that the prima facie case is in favour of the petitioner.

¶42

Balance of convenience is also in favour of the petitioner, and irreparable injury will be caused to the petitioners if the movable articles are not preserved. Considering these factual aspects, the defendant was restrained from using the machine. The lower appellate court had also gone deep into the issue and concurred with the findings entered into by the trial court that the movables were purchased by the plaintiffs and delivered to the defendant.

¶43

As mentioned earlier, the question of payment of the amount due, is a matter of evidence. A court dealing with an application for an injunction must satisfy itself the 3 conditions necessary for granting an injunction. On facts, both courts found that the 3 ingredients for the grant of a temporary injunction, is in favour of the plaintiffs.

¶44

¶45

OPC 2770/2023

¶46

2025:KER:28022 8. The Apex Court in Estralla Rubber v. Dass Estate (P) LTD. reported in [(2001) 8 SCC 97] , has held that the High Court is not vested with any unlimited prerogative to correct all kinds of hardships or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court, while acting under Article 227 of the Constitution of India, cannot exercise its power as an appellate court and substitute its own judgment for that of the subordinate court to correct an error, which is not apparent on the face of the record.

¶47

¶48

OPC 2770/2023

¶49

2025:KER:28022 Therefore, when 2 courts have concurrently found on facts and the discretion is exercised in granting an injunction, this court is not justified in taking a contrary view under Article 227 of the Constitution of India, and it cannot exercise its power as an appellate court or substitute its own judgment in place of the subordinate court to correct an error, which is not apparent on the face of the record.

¶50

Thus, this O.P.(C) is devoid of merits, and it is

¶51

dismissed.

¶52

Sd/-

¶53

BASANT BALAJI JUDGE

dl/

OPC 2770/2023

2025:KER:28022

	`APPENDIXOF OP(C) 2770/2023`
`PETITIONER EXHIBITS`
`Exhibit P1`	`TRUE COPY OF THE PLAINT IN OS NO.1507/22 ON THE` `FILE OF ADDITIONAL MUNSIFF’S COURT-II,` `THIRUVANANTHAPURAM`
`Exhibit P2`	`TRUE COPY OF THE PETITION IN IANO.1/22 IN OS` `NO.1507/22 ON THE FILE OF ADDITIONAL MUNSIFF’S` `COURT-II, THIRUVANANTHAPURAM`
`Exhibit P3`	`TRUE COPY OF THE OBJECTION FILED BY THE` `PETITIONER IN IANO.1/22 IN OS NO.1507/22 ON THE` `FILE OF ADDITIONAL MUNSIFF’S COURT-II,` `THIRUVANANTHAPURAM`
`Exhibit P4`	`TRUE COPY OF THE ORDER DATED 05.08.23 PASSED IN` `I.A.NO.1/2022 IN OS NO.1507/2022 ON THE FILE OF` `ADDITIONAL MUNSIFF’S COURT-II, THIRUVANANTHAPURAM`
`Exhibit P5`	`TRUE COPY OF THE CMA NO.43/23 ON THE FILE OF` `ADDITIONAL DISTRICT COURT-III, THIRUVANANTHAPURAM`
`Exhibit P6`	`TRUE COPY OF THE ORDER DATED 22.11.23 PASSED IN` `CMA NO.43/23 ON THE FILE OF ADDITIONAL DISTRICT` `COURT-III, THIRUVANANTHAPURAM`
`Exhibit P7` Corrected	`TRUE COPY OF THE ORDER DATED 25.08.2023 PASSED IN` `I.A.NO.11/2023 IN OS NO.1507/2022 ON THE FILE OF` `ADDITIONAL MUNSIFF-II, THIRUVANANTHAPURAM`

Bindhu Babu v. Claudio Colangelo

Case brief

What is this about?

What did the court decide?

Bindhu Babu v. Claudio Colangelo

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

M/S. Hedge Finance Limited. Vs Mahesh M

V. K. Radhakrishnan Nair Vs Sree Kumar M. C.

M/S. Hedge Finance Limited Vs Jacob Mathew

Sathidevi A.L Vs Vijayakumar M

Sathidevi A.L Vs Vijayakumar M

Bindu Babu Vs Claudio Colangelo