Bindhu Babu v. Claudio Colangelo and Dhanya Mol Maniyamma

1 OPC 2770/2023 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:28022 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI ``` ``` WEDNESDAY, THE 19[TH] DAY OF MARCH 2025 / 28TH PHALGUNA, 1946 ``` ## **`OP(C) NO. 2770 OF 2023`** ``` 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 ``` ## **`PETITIONER/S:`** ``` BINDHU BABU, AGED 40 YEARS D/O MANIYAMMA, KALLUKUNNU VEEDU, VANDIPURA, PALYAMKUNNU P.O, VARKALA, THIRUVANANTHAPURAM ., PIN - 695146 ``` ``` BY ADV LIJU. M.P ``` ## **`RESPONDENT/S:`** - **`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`** - **`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`** ``` BY ADVS.ANOOP BHASKAR SATHYA SREEKUMARAN(K/003541/2022) AMMU MANOHARAN NARAYANAN(K/683/2014) ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 19.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 OPC 2770/2023 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:28022 ## **JUDGMENT** (Dated this the 19[th] day of March 2025) 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. 2. 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 as a preliminary issue. Thus, the petition was dismissed. 3 OPC 2770/2023 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:28022 3. Along with the suit, I.A.No.1 of 2022 was filed for a 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. 4. 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 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. 5. The second prayer in the suit is to direct the defendant to return the Italian coffee machine, grinder, refrigerator and 4 OPC 2770/2023 **==> picture [58 x 57] intentionally omitted <==** 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. 6. 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 5 OPC 2770/2023 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:28022 court held that the _prima facie_ case is in favour of the petitioner. 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. 7. 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. 6 OPC 2770/2023 **==> picture [58 x 57] intentionally omitted <==** 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. 7 OPC 2770/2023 **==> picture [58 x 57] intentionally omitted <==** 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. Thus, this O.P.(C) is devoid of merits, and it is dismissed. Sd/- **BASANT BALAJI JUDGE** dl/ 8 OPC 2770/2023 **==> picture [58 x 57] intentionally omitted <==** ## 2025:KER:28022 ## **`APPENDIX OF 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 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 ``` Corrected