High Court of KeralaSingle Judge2013-02-13The Original Petition is allowed; attachment or...

Bernard Manuel @ Roy and Others v Shine Augustine and Others

Case / Petition Number:OP(C) NO.243 OF 2013

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Thomas P. Joseph
Judgment Date: 2013-02-13
Court Decision / Holding: O.P(C) No.243 of 2013 allowed: (i) Order dated 20.12.2012 in I.A.1099/2012 in O.S.132/2012 set aside; (ii) I.A.1099/2012 allowed with attachment of item No.1 and 1/3rd right of the 2nd respondent in item No.2 of the schedule; (iii) Registry to communicate the order of attachment to the Sub Registrar, Arakkulam; (iv) lifting of attachment allowed on furnishing security to the court’s satisfaction.
Final Disposition: The Original Petition is allowed; attachment order maintained; detailed directions issued including transmission to Sub Registrar and conditions for lifting attachment.

Parties to the Case

Appellants / Petitioners

Bernard Manuel @ Roy
Theruvan Plantations (P) Ltd
Theruvan Agro Farms (P) Ltd

Respondents

Shine Augustine s/o M.T.Augustine
Joseph Sijo s/o M.C.Chacko
Tinta Sebastian s/o Sebastian

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Devan Ramachandran
• Sri. Aneesh K.M.
• Sri. S. Nikhil Sankar

Counsels for Respondents

• Sri. S.K. Premjith Menon
• Sri. Maneesha D
• Sri. N. Sajan Antony
• Smt. R. Rekha

Case Synopsis & Summary

This Original Petition (OP(C) No.243 of 2013) challenges an order of attachment before judgment passed by the Sub Court, Thodupuzha in I.A. No.1099/2012 in O.S. No.132/2012. The petitioners—Bernard Manuel @ Roy, Theruvan Plantations (P) Ltd, and Theruvan Agro Farms (P) Ltd—seek to set aside the attachment and contest the claim for damages arising from alleged premature termination of a licence and for due licence fees under an agreement. The trial court dismissed the attachment after considering rival contentions and noted alleged forged documents and unclean hands by petitioners, while respondents undertook in court not to dispose or encumber properties without trial court order. The High Court, however, refrains from going into the genuineness of documents at this stage, emphasizing that prima facie satisfaction to attach is permissible under Rule 5 of Order XXXVIII CPC, and that a defendant’s clandestine disposal of property could prejudice the plaintiff’s remedy. Relying on Pareed Master v. Antony (1987 KLT 649) for pragmatic considerations and Cherukutty v. Subrama Sastrigal (1987 KLJ 1144) for the effectiveness of undertakings as attachment, the court concludes the undertaking alone is not binding enough to defeat attachment. It ultimately allows the petition, ordering attachment of item 1 and 1/3rd share of the 2nd respondent, with provision to lift on furnishing security and further directions to the Sub Registrar.

Provisions of Law Cited

Rule 5 of Order XXXVIII of the Code of Civil Procedure (CPC)Section 64 CPC

Legal Doctrines & Maxims

Unclean hands doctrine
Pragmatic difficulties of the plaintiff (Pareed Master v Antony)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that attachment before judgment is warranted to prevent dissipation of assets before trial and rely on Pareed Master v. Antony (1987 KLT 649) and Hameed Abdullah v. Koyenco Autos Pvt. Ltd. (2012 KLT 71) to argue that court should adopt a pragmatic approach and not scrutinize genuineness of documents at this stage. They submit that the undertaking given by respondents is not sufficient to defeat the relief, and that the court should exercise jurisdiction under Rule 5 of Order XXXVIII CPC to secure the plaintiffs’ remedy.

Contentions of Respondents

The respondents argue that the undertaking in court should bind the court and prevent attachment, and that genuineness of documents should be examined carefully. They rely on the undertaking made in court on 19.11.2012 and contend that the Sub Judge’s dismissal of the attachment was proper, as the respondents would be prejudiced by a restrictive measure before trial.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Hameed T. Abdulla v. Koyenco Autos Pvt. Ltd.	2012 [4] KLT 71	Mentioned Only	Cited to discuss contention that attachment before judgment cannot be disposed of merely on an undertaking; court did not adopt this proposition.
Pareed Master v. Antony	1987 KLT 649	Positive	Cited as authority that when construing Rule 5 of Order XXXVIII CPC, pragmatic difficulties of the plaintiff may be considered.
Cherukutty v. Subrama Sastrigal and 5 others	1987 KLJ 1144	Positive	Cited to support the principle that undertaking can have the effect of attachment per Section 64 CPC.
Pareed Master v. Antony	1987 KLT 649	Positive	Repeated reference confirming pragmatic approach in attachment before judgment.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **WEDNESDAY, THE 13TH DAY OF FEBRUARY 2013/24TH MAGHA 1934** **OP(C).NO. 243 OF 2013 (O) ------------------------------------I.A. NO.1099 OF 2012 IN O.S. NO.132 OF 2012 SUB COURT, THODUPUZHA** ## **PETITIONER(S):** **----------------------** **1. BERNARD MANUEL @ ROY AGED 38 YEARS RESIDING AT THERUVANKUNNE HOUSE, KARIMKUNNAM P.O KARIMKUNNAM VILLAGE, THODUPUZHA TALUK.** **2. THERUVAN PLANTATIONS (P) LTD A PRIVATE LIMITED COMPANY HAVING ITS REGISTERED OFFICE AT THERUVAN TOWER MARKET ROAD, THODUPUZHA, IDUKKI DISTRICT KERALA REPRESENTED BY MANAGING DIRECTOR BERNAD MANUAL @ ROY.** **3. THERUVAN AGRO FARMS (P) LTD A PRIVATE LIMITED COMPANY REPRESENTED BY MANAGING DIRECTOR BERNAD MANUAL @ ROY.** **BY ADVS.SRI.DEVAN RAMACHANDRAN SRI.ANEESH K.M. SRI.S.NIKHIL SANKAR** **RESPONDENT(S):** ## **----------------------------** **1. SHINE AUGUSTINE S/O.M.T.AUGUSTINE, RESIDING AT MADACK HOUSE KUDAYATHOOR P.O, KOLPARA, THODUPUZHA TALUK.** ## **O.P(C) NO.243 OF 2013** ## **2. JOSEPH SIJO** **S/O.M.C.CHACKO, BUSINESS RESIDING AT KLAKUZHIYIL HOUSE, MUTTAM P.O MUTTAM VILLAGE, THODUPUZHA TALUK.** ## **3. TINTA SEBASTIAN** **S/O.SEBASTIAN, RESIDING AT VETTICKAL HOUSE KADAMAKUZHY P.O, KATTAPPARA.** **BY ADV. SRI.S.K.PREMJITH MENON ) BY ADV. MANEKSHA.D ) BY ADV. SMT.R.REKHA ) BY ADV. SRI.N.SAJAN ANTONY ) R3** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 13-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **O.P(C) NO.243 OF 2013** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **EXHIBIT P1 CERTIFIED COPY OF THE ORDER DATED 20.12.2012 IN I.A. NO.1099 OF 2012 IN O.S. NO.132 OF 2012 ON THE FILE OF THE COURT OF SUBORDINATE JUDGE, THODUPUZHA** ## **RESPONDENT(S)' EXHIBITS:** **NIL** ## **TRUE COPY** **P.S. TO JUDGE** ## **THOMAS P.JOSEPH, J.** **==================================== O.P(C) No.243 of 2013 ==================================== Dated this the 13[th] day of February, 2013** ## **J U D G M E N T** Respondents appear. 2. This Original Petition is in challenge of Ext.P1, order dated 20.12.2012 on I.A. No.1099 of 2012 in O.S. No.132 of 2012 of Sub Court, Thodupuzha. 3. Petitioners filed that suit for recovery of damages for alleged premature termination of a licence and for licence amount due as per the agreement. Petitioners filed I.A. No.1099 of 2012 for attachment before judgment (of property of 2[nd] respondent and described in the schedule along with I.A. No.1099 of 2012). Learned Sub Judge issued notice to the respondents. 4. Respondents denied the agreement and liability to pay damages or licence fee. Second respondent has made an undertaking that properties will not be transferred or encumbered without order of trial court. The trial court on a consideration of the rival contentions came to the conclusion that conduct of the parties and circumstances of the case is **O.P(C) No. 243 of 2013** ## -: 2 :- such that it is not possible to draw an inference that 2[nd] respondent is about to dispose of property as alleged. Learned Sub Judge also opined that petitioners who filed forged documents and approached the court with uncleaned hands are not entitled to an attachment before judgment. Consequently I.A. No.1099 of 2012 was dismissed. That order is under challenge. 5. Learned counsel has placed reliance on the decision in **Hameed T.Abdulla v. Koyenco Autos Pvt. Ltd.** (2012 [4] KLT 71 (Case No.54) to contend that application for attachment before judgment could not be disposed of merely based on undertaking made by the opposite parties. Reliance is also placed reliance on the decision in **Pareed Master v.** **Antony** (1987 KLT 649) to contend that when a request for attachment before judgment is made, the court has to take a pragmatic view of the matter bearing in mind difficulties of the plaintiff. According to the learned counsel, learned Sub Judge was not right at this stage in observing that petitioners came to the court with unclean hands and have filed forged documents. 6. I am inclined to think that at this stage learned Sub **O.P(C) No. 243 of 2013** ## -: 3 :- Judge was not required to go into the genuineness or otherwise of the document produced by the petitioner. What is required to be shown is only a prima facie satisfaction for the court that unless attachment is made the opposite party might dispose of property or remove the same from the local limits of the court concerned. In **Pareed Master v. Antony** (supra) it is held that the court while construing Rule 5 of Order XXXVIII of the Code of Civil Procedure should keep in mind pragmatic difficulties of plaintiff. It is also stated that the defendant if he had intention to defeat or delay the execution of the decree that may be passed against him, would be disposing of the property in a clandestine manner and that plaintiff would not be in a position to learn about that. 7. Respondents have made an undertaking in the court on 19.11.2012 as above stated. A Division Bench of this Court in **Cherukutty v. Subrama Sastrigal and 5 others** (1987 KLJ 1144) has held that such undertaking will have the effect of an attachment making Section 64 of the Code applicable and that if a transfer is made in violation of such undertaking decree holder will not be bound by the transfer. **O.P(C) No. 243 of 2013** -: 4 :- 8. In this case it is seen that learned Sub Judge has not accepted or acted upon the undertaking made by the respondents in court on 19.11.2012. Instead, learned Sub Judge has dismissed I.A. No.1099 of 2012. Therefore the undertaking made by the respondents is of no avail or effective. 9. Having regard to the nature of the claim made by the petitioners I am satisfied that it is required to be enquired into by the trial court. If before that properties of second respondent are disposed of, execution of the decree that petitioners may get in their favour would either be delayed or protracted. In that view of the matter, I am inclined to think that learned Sub Judge ought to have granted an order of attachment. 10. Respondents have not shown sufficient cause why they shall not furnish security for the plaint claim, interest and costs. Hence property of the 2[nd] respondent is liable to be attached before judgment. Resultantly, this Original Petition is allowed as under: (i) Exhibit P1, order dated 20.12.2012 on I.A. No.1099 of 2012 in O.S. No.132 of 2012 of the Sub Court, Thodupuzha is set aside. ## **O.P(C) No. 243 of 2013** -: 5 :- (ii) I.A. No.1099 of 2012 is allowed. Consequently, item No.1 and the 1/3[rd] right of 2[nd] respondent in item No.2 of the schedule to I.A. No.1099 of 2012 are placed under attachment. (iii) Registry shall communicate the order of attachment to the Sub Registrar, Arakkulam. (iv) If the 2[nd] respondent wishes to have the attachment lifted it is open to him to furnish security to the satisfaction of the court below and request to lift the attachment. ## **THOMAS P. JOSEPH, JUDGE.** vsv