Christish C. Mani v. Sujeesh (O.P.(C).No.1017 of 2022)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 19[TH] DAY OF JULY 2022 / 28TH ASHADHA, 1944 OP(C) NO. 1017 OF 2022** **AGAINST THE ORDER IN I.A.NO.8/2022 IN OS 12/2022 OF SUB COURT / COMMERCIAL COURT, MANJERI** ## **PETITIONER/PETITIONER IN IA & PLAINTIFF IN O.S:** CHRISTISH C. MANI AGED 43 YEARS SO OF T.C. MANI, CHOLAYILLAPLAKKAL HOUSE CHAKKALAKUTHU, NILAMBUR PO., NILAMBUR AMSOM DESOM, NLAMBUR TALUK, MALAPPURAM DISTRICT, PIN – 679329. BY ADV R.RAJESH KORMATH ## **RESPONDENT/RESPONDENT IN IA & DEFENDANT IN OS:** SUJEESH AGED 38 YEARS SON OF THAKIDIYIL SADANANDAN THAKIDIYIL HOUSE, NAROKKAVU, VAZHIKADAVU PO., VAZHIKKADAVU AMSOM DESOM, NILAMBUR TALUK, MALAPPPURAM DISTRICT, PIN -679333. PRESENTLY RESIDING AT: THEEKUNNAN HOUSE, KARTHENI, VANIYAMBALAM PO., VANIYAMBALAM AMSOM DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT, PIN – 679339. BY ADVS. Adv. K.M.JAMALUDHEEN LATHA PRABHAKARAN(K/158/1993) THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 30.06.2022, THE COURT ON 19.07.2022 DELIVERED THE FOLLOWING: O.P(C).No.1017 of 2022 2 ## _**A.BADHARUDEEN, JJ.**_ ================================ _O.P(C).No.1017 of 2022_ ================================ _Dated this the 19[th] day of July, 2022_ ## _**J U D G M E N T**_ This Original Petition has been filed under Article 227 of the Constitution of India by the plaintiff in O.S.No.12/2022 on the file of the Sub Court, Manjeri. The respondent herein is the sole defendant in the above Suit. 2. Heard the learned counsel for the petitioner and the respondent in detail. 3. The petitioner approached this Court, being aggrieved by dismissal of I.A.No.8/2022 in the above case by the Sub Judge. Ext.P1 is the copy of O.S.No.12/2022, filed by the petitioner seeking performance of contract of sale or to get back the advance sale consideration with 7% interest. I.A.No.8/2022 was filed under Order 38 Rule 5 of the Code of Civil Procedure to attach O.P(C).No.1017 of 2022 3 another item of property belonging to the defendant on the allegation that the plaint schedule property which was agreed to be sold was encumbered by the respondent with the Kerala State Financial Enterprises Ltd. and, therefore, the plaintiff apprehended sufficient security to get the advance amount at least, being pressed into as an alternative prayer, and canvassed attachment before judgment of the property, scheduled in the petition. 4. The defendant filed objection stating that the property was offered as security by the defendant before the Kerala State Financial Enterprises Ltd. is incorrect. The execution of the agreement was admitted. Further, transfer of the plaint schedule property was restrained by order of injunction in I.A.No.2/2022 and, therefore, the attachment sought for is not liable to be allowed. 5. After considering the rival pleas, the learned Sub Judge dismissed the application mainly relying on a decision of this Court reported in [2018 (1) KLJ 782 : 2018 (1) KLT 558 : 2018 (1) KHC 574 : ILR 2018 (1) Ker.1025], _**Skoda Auto India Private Limited v. St.Antonys Trading Company & Ors.**_ O.P(C).No.1017 of 2022 4 6. It is argued by the learned counsel for the petitioner that since the property agreed to be sold has been encumbered with the Kerala State Financial Enterprises, likelihood of getting the advance amount coming to the tune of Rs.20,20,000/- to be realised from the said property is remote and therefore, additional item of property sought to be attached in I.A.No.8/2022 is liable to be allowed. 7. The learned counsel for the appellant/petitioner placed certain decisions of this Court as well as the Apex Court dealing with the requirements under Order 38 Rule 5 of the Code of Civil Procedure. The first decision is one reported in [1987 (2) KLT 649], _**Pareed Master v. Antony**_ . In the said judgment, when a Division Bench of this Court considered the requirements in a petition filed under Order 38 Rules 5 and 6 of the Code of Civil Procedure for an order of attachment before judgment, it has been observed as under: _“A perusal of O.38 R.5 shows that the plaintiff in a suit is entitled to seek an attachment before judgment where the defendant with the_ O.P(C).No.1017 of 2022 5 _intention to obstruct or delay the execution of decree that may be passed, is about to dispose of the whole or any part of the property. The court while construing these provisins should keep in mind the pragmatic difficulties of a plaintiff. The defendant if he had intention to defeat or delay the execution of the decee that may be passed against him would be disposing of the property in a clandestine manner. The plaintiff would not be in a position to know all the details of that transaction. It is true that mere allegation of the plaintiff is not sufficient to order an attachment before judgment.”_ 8. Another decision reported in [2017 (3) KHC 836], _**Ignatious v. Dominic**_ , has been placed to appreciate the consequence of non registration of an agreement for sale. In this decision, this Court considered the essentials to claim under Section 53A of the Transfer of Property Act. In the decision it has been held that an unregistered contract for sale can be enforced on the date of the Suit as no bar was created under Section 17(1A) of the Registration Act affecting its enforcibility. 9. Both sides also placed the decision relied on by the trial court while dismissing I.A.No.8/2022 in _**Skoda Auto India Private Limited v. St.Antonys Trading Company & Ors.**_ 's case. 10. The learned counsel for the respondent placed a decision O.P(C).No.1017 of 2022 6 of the Apex Court reported in [2007 KHC 3338 : JT 2007 (5) SC 431 : 2007 (4) SCC 343 : AIR 2007 SC 1636 : 2007 (2) CHN 240], _**Begum Sabiha Sultan v. Nawab Mohd. Mansur Ali Khan & Ors.**_ and para.10 of the above judgment dealing with rejection of plaint under Order 7 Rule 10 of the Code of Civil Procedure is highlighted. I do not think that the decision in the above case has any bearing on the facts of this case. 11. The learned counsel for the petitioner placed another decision reported in [(2006) 1 SCC 368], _**Union of India & anr. v. Major Bahadur Singh**_ , dealing with interpretation of judgments. The above decision points out the fact that the courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which rerliance is placed. Observations of the courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of the courts are not to be construed as statutes. To interpret words, O.P(C).No.1017 of 2022 7 pharases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. Further, in the above decision it was held that each case depends on its own facts. 12. Decision reported in [(2006) 3 SCC 434], _**Bombay Dyeing & MFG. CO. LTD. v. Bombay Environmental Action Group**_ is also placed by the learned counsel for the petitioner, and it was held therein that; it is well settled that a judgment cannot be read as a statute and construction of a judgment should be made in the light of the factual matrix involved therein. What is more important is to see the issues involved there and the context wherein the observations were made. Any observations made in a judgment, it is trite, should not be read in isolation and out of context. 13. On analysing the ratio of the decisions, first of all I have gone through the affidavit filed in support of I.A.No.8/2022, produced herein as Ext.P7, wherein it has been stated that the O.P(C).No.1017 of 2022 8 defendant, with intention to defeat the plaintiff, offered the plaint schedule property as security to the Kerala State Financial Enterprises and, therefore, the defendant may be directed to furnish any security for the Suit amount or in the alternative to attach the property scheduled in the petition. In the order impugned, the learned Sub Judge, relying on _**Skoda Auto India Private Limited v.**_ _**St.Antonys Trading Company & Ors.**_ 's case ( _supra_ ), dismissed the application for the reasons mentioned in para.11 of the impugned order, produced as Ext.P10. 14. It is argued by the learned counsel for the respondent that no materials produced before the Court to establish the fact that the defendant encumbered the property with the Kerala State Financial Enterprises and, therefore, the contention itself is found to be baseless. Repelling this contention, the learned counsel for the petitioner submitted that I.A.No.12/2022 was filed calling for documents from the Kerala State Financial Enterprises, but the same was not considered by the court below. 15. In this matter, whether the property is encumbered as O.P(C).No.1017 of 2022 9 contended by the plaintiff is a relevant aspect and at present there is nothing before this Court to substantiate the same. Therefore, I am of the view that the attachment petition shall be considered by the trial court afresh after allowing I.A.No.12/2022, which was filed by the petitioner to get documents regarding the plaint schedule property in O.S.No.12/2022 alleged to be encumbered with the Kerala State Finance Enterprises by the defendant. 16. In view of the above factual circumstances, Ext.P10 order is liable to be set aside and the matter can be remanded back to the trial court for fresh consideration in accordance with law, after considering I.A.No.12/2022 also. 17. In the result, the Original Petition stands allowed and Ext.P10 order is set aside. The matter is remitted back to the trial court, for fresh disposal. It is specifically ordered that in order to protect the interest of the petitioner, in the context of the apprehension made, I am inclined to direct the defendant not to **s** ell or encumber the petition schedule property in I.A.No.8/2022, till a final decision is taken by O.P(C).No.1017 of 2022 10 the trial court afresh. The court below is directed to take a fresh decision in I.A.No.8/2022, within a period of six weeks from the date of receipt or production of a copy of this judgment. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_ O.P(C).No.1017 of 2022 11 ## **APPENDIX OF OP(C) 1017/2022** ## PETITIONER'S EXHIBITS |Exhibit-P1|TRUE COPY OF PLAINT DATED 05.02.2022 IN| |---|---| ||O.S.NO.12/2022 ON THE FILE OF SUB COURT,| ||MANJERI.| |Exhibit-P2|TRUE COPY OF AGREEMENT DATED 16.09.2021| ||ENTERED INTO BETWEEN PETITIONER AND| ||RESPONDENT.| |Exhibit-P3|TRUE COPY OF THE WRITTEN STATEMENT DATED| ||09.03.2022<br>FILED<br>BY<br>THE| ||RESPONDENT/DEFENDANT IN O.S.NO.12/2012| ||BEFORE THE SUB COURT, MANJERI.| |Exhibit-P4|TRUE <br>COPY<br>OF <br>I.A.NO.2/2022<br>AND| ||ACCOMPANYING AFFIDAVIT DATED 05.02.2022| ||IN O.S.NO.12/2022 ON THE FILE OF SUB| ||COURT, MANJERI.| |Exhibit-P5|TRUE COPY OF THE ORDER DATED 08.2.2022| ||IN I.A.NO.2/2022 IN O.S.NO.12/2022 ON| ||THE FILE OF SUB COURT MANJERI.| |Exhibit-P6|TRUE COPY OF THE COUNTER DATED| ||09.03.2022 FILED Y THE RESPONDENT IN| ||I.A.NO.2/2022 IN O.S.NO.12/2022 ON THE| ||FILE OF SUB COURT MANJERI.| |Exhibit-P7|TRUE<br>COPY<br>OF<br>I.A.NO.8/2022<br>IN| ||O.S.NO.12/2022 DATED 23.05.2022 FILED| ||BEFORE THE SUB COURT, MANJERI.| |Exhibit-P8|TRUE<br>COPY<br>OF<br>THE<br>COUNTER<br>IN| ||I.A.NO.8/2022 IN O.S.NO.12/2022 DATED| ||31.05.2022 ON THE FILE OF THE SUB COURT,| ||MANJERI, FILED BY THE RESPONDENT.| |Exhibit-P9|TRUE COPY OF THE I.A.NO.12/2022| ||ALONGWITH AFFIDAVIT DATED 08.06.2022 IN| ||O.S.NO. 12/2022 FILED BEFORE THE SUB| ||COURT, MANJERI.| O.P(C).No.1017 of 2022 12 Exhibit-P10 CARBON COPY OF THE ORDER DATED 09.06.2022 IN I.A.NO.8/2022 IN O.S.NO.12/2022 ON THE FILE OF SUB COURT, MANJERI. ## RESPONDENT'S EXHIBITS R1(a) True copy of the affidavit and petition in I.A.No-15/2022 in O.S.No-12/2022. R1(b) True copy of the relevant pages of the e-court proceedings of the Subordinate /Assistant Sessions Judge, Manjeri in OS.No.12/2022 dated 31-52022. R1(c) True copy of the relevant pages of the e-court proceedings of the Subordinate/Assistant Sessions Judge, Manjeri in OS.No.12/2022 dated 1-6-2022. R1(d) True copy of the relevant pages of the e-court proceedings of the Subordinate/Assistant Sessions Judge, Manjeri in OS.No.12/2022 dated 9-6-2022.