Chathoth Subha v. State Bank of India, Kanhangad Branch, and Dr. K.P. Narayanan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 16TH DAY OF AUGUST 2016/25TH SRAVANA, 1938** **OP(C).No. 1953 of 2016 (O) --------------------------OS 211/2016 of MUNSIFF COURT, THALASSERY -----------** ## **PETITIONER(S)/PLAINTIFF:** **-----------------------** **CHATHOTH SUBHA AGED 55 YEARS, W/O.K.P.V.NARAYANAN, DEEPAM, NEW TOWN HALL, CHIRAKKARA P.O., THIRUVANGAD, THALASSERI, KANNUR DISTRICT.** **BY ADVS.SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA** ## **RESPONDENT(S)/DEFENDANT:** **------------------------** ## **1. SENIOR MANAGER** **STATE BANK OF INDIA, KANHANGAD BRANCH, KASARAGOD DISTRICT-571 315.** ## **2. DR.K.P.V.NARAYANAN** **S/O.AMBU, AGED 66 YEARS, TOWN HALL, CHIRAKKARA PO, THIRUVANGAD, THALASSERI,KANNUR DISTRICT, PRESENTLY RESIDING AT ROOPA NIVAS, CHERICHAL, AJANOOR, KANHANGAD,KASARAGOD-671 315.** **R2 BY ADV. SRI.K.C.SANTHOSHKUMAR BY SRI.TOM K.THOMAS** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 16-08-2016, ALONG WITH OPC. 1956/2016,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bp** ## **OP(C).No. 1953 of 2016 (O) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **EXHIBIT P1 : TRUE COPY OF THE PLAINT OS 211/2016 OF THE MUNSIFF COURT, THALASSERI.** **EXHIBIT P2 : TRUE COPY OF THE IA 1370/2016 IN OS 211/2016 DATED 6-6-2016.** **EXHIBIT P3 : TRUE COPY OF THE IA 1828/2016 IN OS 211/2016 DATED 26-7-2016.** **EXHIBIT P4 : TRUE COPY OF THE COUNTER STATEMENT FILED BY THE PLAINTIFF IN IA 1828/2016.** **EXHIBIT P5 : TRUE COPY OF THE ORDER PASSED IN IA 1828/2016 IN OS 211/2016 DATED 1-8-2016.** **RESPONDENT(S)' EXHIBITS : NIL.** ## **//TRUE COPY//** **P.A. TO JUDGE** ## **bp** ## **K.RAMAKRISHNAN, J.** ---------------------------------------------- ## **O.P. (Civil) No.1953 of 2016 & O.P. (Civil) No.1956 of 2016** ------------------------------------------------- _Dated this the 16[th ] day of August, 2016_ ## **COMMON JUDGMENT** These petitions were filed by the petitioners challenging Ext.P5 order passed in both these cases under Article 227 of the Constitution of India. 2. It is alleged in both the petitions that the second respondent is the husband of the petitioner and she filed Ext.P1 suits in both the cases, namely O.S.No.211/2016 and O.S.No.199/2016 on the file of the Munsiff Court, Thalassery, originally against the first respondent in those cases for injunction restraining the first respondent institutions from disbursing the amount in the account of her husband as he is an alcoholic and unable to look after himself and he has become senile on account of over alcoholism. Thereafter, though she filed an application for interim injunction that was not granted. In the meantime the second respondent himself has filed an application to get himself impleaded and that petition was allowed after conducting a preliminary enquiry under Order 32 Rule 15 of the Code of Civil Procedure and the court formed an opinion that he is capable of looking after his affairs and accordingly he has been impleaded as additional second respondent in all these cases. Thereafter he filed Ext.P3 application for giving direction to the first 2 ## _**O.P. (Civil) No.1953 of 2016 & O.P. (Civil) No.1956 of 2016**_ respondent/institutions to pay the amount in the deposit in his name and those applications were allowed by the court below as per Ext.P5 order in both these cases which are being challenged by the petitioner by filing these petitions. 3. First respondent in both the cases are only formal parties. Sri.Tom K.Thomas entered appearance for the first respondent in O.P. (C)No.1953/2016 and notice to first respondent in O.P.(C)1956/2016 is dispensed with as they are only formal parties. Sri.K.C.Santhosh Kumar entered appearance for the second respondent in both the cases. 4. Heard Sri.K.Mohanakannan, counsel appearing for the petitioners in both the cases and Sri.Tom.K.Thomas, counsel appearing for the first respondent in O.P.(C).No.1953/2016 and Sri.K.C.Santhosh Kumar, counsel appearing for the second respondent in both the cases. 5. The counsel for the petitioner in these cases submitted that the court below was not justified in allowing the application especially when the petitioner has raised a contention that the court has no jurisdiction to entertain such application in view of section 7(1)(c) of the Family Courts Act, 1984. Without considering that contention, the _**O.P. (Civil) No.1953 of 2016 & O.P. (Civil) No.1956 of 2016**_ 3 court below was not justified in passing the order. 6. On the other hand, the counsel for the first respondent in O.P.(C)No.1953/2016 submitted that, they are only custodian of the amount and since a suit has been filed, they are not in a position to release the amount and they will abide by the orders of the court regarding the disbursal of the amount. 7. The counsel for the second respondent in both the cases submitted that the plaintiff is not claiming any right over the amount and as such Section 7 of the Family Courts Act is not applicable and the court below was perfectly justified in passing the order. 8. It is an admitted fact that the petitioner and the second respondent are wife and husband and their marital relationship strained and they are living separately. It is also an admitted fact that the petitioner in both these cases has filed Ext.P1 suits namely O.S.No.211/2016 and O.S.No.199/2016, both on the file of the Munsiff Court, Thalassery originally against first respondent/institutions alone without impleading the husband, against whom certain allegations have been made, restraining them from disbursing the amount in deposit in his name. It is also an admitted fact that an application for interim injunction was filed, court below had not granted any exparte 4 ## _**O.P. (Civil) No.1953 of 2016 & O.P. (Civil) No.1956 of 2016**_ injunction, but ordered only notice to the respondent in the application and suit. Since suits were pending, the first respondent institutions were reluctant to disburse the amount to the second respondent. So he filed Ext.P2 petitions as I.A.No.1370/2016 in O.S.No.211/2016 and I.A.No.1369/2016 in O.S.No.199/2016 to get himself impleaded in those suits as additional second respondent. It is also an admitted fact that after conducting enquiry under Order 32 Rule 15 of Civil Procedure Code, the court below had come to a _prima facie_ conclusion that he is capable of maintaining himself and allowed his petition to implead in the suits and he was impleaded as additional second respondent in both the cases. 9. It is also seen from the documents produced that the second respondent had moved this court as O.P.(C)No.1767/2016 and O.P.(C)No.1769/2016 in both these cases seeking the intervention of this court to direct the court below to release certain amount and this court has directed the second respondent herein to move the court below itself for release of portion of the deposit and if such an application is filed, the same can be considered by that court and the O.P.Civil petitions were disposed of accordingly. It is thereafter that the second respondent filed Ext.P3 petitions in both the cases as 5 ## _**O.P. (Civil) No.1953 of 2016 & O.P. (Civil) No.1956 of 2016**_ I.A.No.1828/2016 in O.S.No.211/2016 and I.A.No.1827/2016 in O.S.No.199/2016 for permitting him to withdraw the amount and issue direction to the first respondent institutions to disburse the amount and the petitioner filed Ext.P4 counter statements in both the cases raising contentions _inter alia_ that by virtue of section 7(1)(c) of the Family Courts Act, that court has no jurisdiction to entertain the application in that proceedings and prayed for dismissal of the application. Overruling the contentions raised by the petitioner that the court below had passed Ext.P5 impugned order in these cases permitting the second respondent to withdraw ₹3,00,000/in O.S.No.211/2016 and 5,00,000/- in O.S.No.199/2016 leaving open₹ the liberty of the second respondent herein to move similar application if he requires further amount before that court. These orders are being challenged by the petitioner before this court. 10. It may be mentioned that the suit itself was filed by the plaintiff, who is the master of the suit without impleading the husband in the proceedings and wanted to get some orders behind the back of the husband impleading only the institutions with whom her husband had made some deposit. In the plaint she had no case that she has got any right in the amount deposited. Her only case was that he being a _**O.P. (Civil) No.1953 of 2016 & O.P. (Civil) No.1956 of 2016**_ 6 drunken person became senile, unable to look after his affairs and he is withdrawing the amount indiscriminatory and spending the amount. It is thereafter that the second respondent had filed applications to get himself impleaded in the case and after getting a direction from this court filed the application for permission to withdraw the amount and on that basis, after hearing both the sides, the court below had passed the orders under challenge. 11. If the petitioner feels that the civil court has no jurisdiction to entertain the application filed by the petitioner, then the remedy of the petitioner is to withdraw the suit and file the suit in proper court and get appropriate relief from that court. Having filed a suit in respect of an amount belonging to the husband and when the court has passed an order when the husband has filed an application controverting the allegations in the plaint and got himself impleaded stating that he is not suffering from any infirmity in operating the bank account after convincing the court, the petitioner is not entitled to raise the question of jurisdiction of that court as the suit itself is not maintainable before that court and if that be the case, she has no right to object the second respondent filing petition before that court to withdraw the amount due to him from the institutions. The counsel has relied on 7 ## _**O.P. (Civil) No.1953 of 2016 & O.P. (Civil) No.1956 of 2016**_ section 7(1)(c) of the Family Courts Act, which says that, a suit or proceeding between the parties to a marriage with respect to the property of the parties or either of them has to be filed before Family Court and relied on the decision reported in _**Vasumathi v. Valsan**_ (2011(3) KLT 638) in support of the proposition that a suit or proceedings does not loose its essential character as one between the parties, merely because that proceedings is initiated by a named lendor to one of the parties who has no dispute with one of the spouses. That dictum is not applicable to the facts of this case. There is no dispute regarding the ownership of the property. Even according to the petitioner in these cases, the amount belongs to the second respondent and her grievance was that he being a drunkard became senile on account of over alcoholism, unable to look after himself and as such the bank/institutions should not disburse the amount to him. If really the petitioner wants a proper resolution in respect of this aspect, she ought to have impleaded her husband also in the suit and sought an injunction against him from withdrawing the amount from the bank, which she did not dare to do. When the second respondent came to court with an application to withdraw the amount over which he alone has right, the petitioner who herself now feels that the suit is not _**O.P. (Civil) No.1953 of 2016 & O.P. (Civil) No.1956 of 2016**_ 8 maintainable before that court resists the application on that ground. If really she feels that the suit is not maintainable before that court, she can withdraw the suit and file the suit in a proper forum and get appropriate relief. The court below has not granted any order permitting the second respondent to withdraw the entire amount, but only permitted to withdraw a portion of the amount with liberty to come before the same court for that purpose. That shows that, court below is also taking care in protecting the interest of the petitioner for the time being. Considering the circumstances, this court did not find any reason to interfere with Ext.P5 impugned orders passed by the court below invoking Article 227 of the Constitution of India as no illegality or impropriety has been committed by the court below in passing the impugned orders. So the petition lack merits and the same is hereby dismissed. Communicate this judgment to the court below at the earliest. ## _Sd/-_ **(K. Ramakrishnan, Judge)** //True Copy// P.A. to Judge ss