Cotton Corporation of India Limited v. Keli Hotels (P) Limited; Rajagopal Textiles Pvt Ltd; Sumesh; Usha; Menachery Hospital Pvt Ltd; Swapna; Vasudevan (Execution First Appeals arising from EP 139/2012, OS 1233/1980, Thrissur)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.SOMARAJAN`** ``` TUESDAY, THE 24[TH] DAY OF JANUARY 2023 / 4TH MAGHA, 1944 ``` ``` EX.FA NO. 9 OF 2021 ``` ``` AGAINST THE ORDER DATED 19.11.2020 ON EA 1065/2019 IN EP 139/2012 IN OS 1233/1980 OF III ADDITIONAL DISTRICT COURT, THRISSUR ``` ## **`APPELLANT/1ST RESPONDENT:`** ``` COTTON CORPORATION OF INDIA LIMITED, AIR INDIA BUILDING, 12[TH] FLOOR, NARIMAN POINT, MUMBAI 400 021, REPRESENTED BY PRESENTLY REPRESENTED BY ITS GENERAL MANAGER, 5/7, B.R.NAGAR, 2[ND] FLOOR, KOTHARI LAYOUT, 4[TH] STREET, SINGANALLUR, COIMBATORE 641 005 BY ADVS. K.G.BALASUBRAMANIAN SMT.AMBILY (PREMKUMAR) ``` ## **`RESPONDENTS/PETITIONER & RESPONDENT 2:`** ``` 1KELI HOTELS (P) LIMITED, REGISTERED OFFICE AT DOOR NO.6/315, KUNNATHULLY HOUSE, KOORKANCHERY VILLAGE, PIN 680 007, THRISSUR TALUK, REPRESENTED BY MANAGING DIRECTOR. 2RAJAGOPAL TEXTILES PVT LTD., ECHAL KARANJI DISTRICT, KOLAPUR, MAHARASHTRA, NOW REGISTERED OFFICE AT MULAMKUNNATHUKAVU P.O., 680 581, THRISSUR. ``` ``` BY ADVS. S.MUHAMMED HANEEFF M.H.ASIF ALI ``` ``` THIS EXECUTION FIRST APPEAL HAVING COME UP FOR HEARING ON 24.01.2023, ALONG WITH Ex.FA.12/2021, 11/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Ex.FA Nos.9/2021, 12/2021, 11/2021, 14/2021, 13/2021, 15/2021 ``` ``` 2 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.SOMARAJAN TUESDAY, THE 24[TH] DAY OF JANUARY 2023 / 4TH MAGHA, 1944 ``` ``` EX.FA NO. 12 OF 2021 ``` ``` AGAINST THE ORDER DATED 19.11.2020 ON EA 1128/2019 IN EP 139/2012 IN OS 1233/1980 OF III ADDITIONAL DISTRICT COURT, THRISSUR ``` ## **`APPELLANT/1ST RESPONDENT:`** ``` COTTON CORPORATION OF INDIA LIMITED, AIR INDIA BUILDING, 12[TH ]FLOOR, NARIMAN POINT, MUMBAI 400 021, REP.BY ITS GENERAL MANAGER, 5/7, B.R.NAGAR, 2ND FLOOR, KOTHARI LAYOUT, 4[TH] STREET, SINGANALLUR, COIMBATORE 641 005 ``` ``` BY ADVS. K.G.BALASUBRAMANIAN AMBILY (PREMKUMAR) ``` ## **`RESPONDENTS/PETITIONER & RESPONDENT 2:`** ``` 1USHA, W/O.KUNNATHULLY VASUDEVAN, AGED ABOUT 57, CHIYYARAM VILLAGE/DESOM:680 026, THRISSUR TALUK/DISTRICT. 2RAJAGOPAL TEXTILES PVT LTD. ECHAL KARANJI DISTRICT, KOLAPUR, MAHARASHTRA, NOW REGISTERED OFFICE AT MULAMKUNNATHUKAVU PO: 680 581, THRISSUR ``` ``` Ex.FA Nos.9/2021, 12/2021, 11/2021, 14/2021, 13/2021, 15/2021 ``` **==> picture [7 x 8] intentionally omitted <==** ``` BY ADVS. SAIJO HASSAN BENOJ C AUGUSTIN RAFEEK. V.K. P.PARVATHY NAZRIN HALLAJ SHILPA M.RAJAN NAGARAJ NARAYANAN ``` ``` THIS EXECUTION FIRST APPEAL HAVING COME UP FOR HEARING ON 24.01.2023, ALONG WITH Ex.FA.9/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Ex.FA Nos.9/2021, 12/2021, 11/2021, 14/2021, 13/2021, 15/2021 ``` ``` 4 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.SOMARAJAN TUESDAY, THE 24[TH] DAY OF JANUARY 2023 / 4TH MAGHA, 1944 ``` ``` EX.FA NO. 11 OF 2021 ``` ``` AGAINST THE ORDER DATED 19.11.2020 ON EA 1106/2019 IN EP 139/2012 IN OS 1233/1980 OF III ADDITIONAL DISTRICT COURT, THRISSUR ``` ## **`APPELLANT/1ST RESPONDETNT:`** ``` COTTON CORPORATION OF INDIA LIMITED, AIR INDIA BUILDING, 12[TH] FLOOR NARIMAN POINT, MUMBAI 400021 REPRESENTED BY PRESENTLY REPRESENTED BY ITS GENERAL MANAGER, 5/7, B.R. NAGAR, 2[ND] FLOOR, KOTHARI LAYOUT , 4TH STREET, SINGANALLUR, COIMBATORE 641 005. ``` ``` BY ADVS. K.G.BALASUBRAMANIAN AMBILY (PREMKUMAR) ``` ## **`RESPONDENTS/PETITIONER & RESPONDENT 2:`** ``` 1SUMESH, S/O. KUNNATHULLY, VASUDEVAN , AGED ABOUT 37 YEARS, CHIYYARAM VILLAGE/DESOM:680026, THRISSUR TALUK/DISTRICT. 2RAJAGOPAL TEXTILES PVT.LTD., ECHAL KARANJI DISTRICT, KOLAPUR, MAHARASHTRA, NOW REGISTERED OFFICE AT MULAMKUNNATHUKAVU P.O.680 581, THRISSUR. ``` ``` BY ADVS. NAGARAJ NARAYANAN SAIJO HASSAN BENOJ C AUGUSTIN RAFEEK. V.K. ``` ``` Ex.FA Nos.9/2021, 12/2021, 11/2021, 14/2021, 13/2021, 15/2021 ``` ``` 5 ``` ``` U.M.HASSAN P.PARVATHY AATHIRA SUNNY ``` ``` THIS EXECUTION FIRST APPEAL HAVING COME UP FOR HEARING ON ``` - `24.01.2023, ALONG WITH Ex.FA.9/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:` ``` Ex.FA Nos.9/2021, 12/2021, 11/2021, 14/2021, 13/2021, 15/2021 ``` ``` 6 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.SOMARAJAN TUESDAY, THE 24[TH] DAY OF JANUARY 2023 / 4TH MAGHA, 1944 ``` ``` EX.FA NO. 14 OF 2021 ``` ``` AGAINST THE ORDER DATED 19.11.2020 ON EA 1070/2019 IN EP 139/2012 IN OS 1233/1980 OF III ADDITIONAL DISTRICT COURT, THRISSUR ``` ## **`APPELLANT/1ST RESPONDENT:`** ``` COTTON CORPORATION OF INDIA LIMITED AIR INDIA BUILDING, 12[TH] FLOOR, NARIMAN POINT, MUMBAI 400021, REPRESENTED BY PRESENTLY,REPRESENTED BY ITS GENERAL MANAGER,5/7,B.R.NAGAR, 2[ND] FLOOR, KOTHARI LAYOUT, 4[TH] STREET, SINGANALLUR, COIMBATORE-641005. ``` ``` BY ADVS. K.G.BALASUBRAMANIAN AMBILY (PREMKUMAR) ``` ## **`RESPONDENTS/PETITIONER & RESPONDENT 2:`** ``` 1MENACHERY HOSPITAL PVT LTD., REGISTERED OFFICE AT DOOR NO.27/283, MENACHERY VILLA, CHEMBUKKAVU DESOM-680020, THRISSUR TALUK. 2RAJAGOPAL TEXTILES PVT.LTD, ECHAL KARANJI DISTRICT,KOLAPUR, MAHARASHTRA,NOW REGISTERED OFFICE AT MULAMKUNNATHUKAVU.P.O-680581, THRISSUR. ``` ``` BY ADV G.SREEKUMAR (CHELUR) ``` ``` Ex.FA Nos.9/2021, 12/2021, 11/2021, 14/2021, 13/2021, 15/2021 ``` **==> picture [7 x 7] intentionally omitted <==** ``` THIS EXECUTION FIRST APPEAL HAVING COME UP FOR HEARING ON 24.01.2023, ALONG WITH Ex.FA.9/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Ex.FA Nos.9/2021, 12/2021, 11/2021, 14/2021, 13/2021, 15/2021 ``` ``` 8 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.SOMARAJAN TUESDAY, THE 24[TH] DAY OF JANUARY 2023 / 4TH MAGHA, 1944 EX.FA NO. 13 OF 2021 ``` ``` AGAINST THE ORDER DATED 19.11.2020 ON EA 1107/2019 IN EP 139/2012 IN OS 1233/1980 OF III ADDITIONAL DISTRICT COURT, THRISSUR ``` ## **`APPELLANT/1ST RESPONDETNT:`** ``` COTTON CORPORATION OF INDIA LIMITED AIR INDIA BUILDING, 12[TH] FLOOR, NARIMAN POINT,MUMBAI 400021, REPRESENTED BY PRESENTLY,REPRESENTED BY ITS GENERAL MANAGER,5/7,B.R.NAGAR, 2[ND] FLOOR, KOTHARI LAYOUT, 4TH STREET, SINGANALLUR, COIMBATORE-641005. ``` ``` BY ADVS. K.G.BALASUBRAMANIAN AMBILY (PREMKUMAR) ``` ## **`RESPONDENTS/PETITIONER & RESPONDENT 2:`** ``` 1SWAPNA, D/O KUNNATHULLY VASUDEVAN, AGED ABOUT 37 YEARS, CHIYYARAM VILLAGE/DESOM-680026, THRISSUR TALUK/DISTRICT. 2RAJAGOPAL TEXTILES PVT LTD, ECHAL KARANJI DISTRICT,KOLAPUR, MAHARASHTRA,NOW REGISTERED OFFICE AT MULAMKUNNATHUKAVU.P.O-680581, THRISSUR. ``` ``` BY ADVS. NAGARAJ NARAYANAN SAIJO HASSAN ``` ``` Ex.FA Nos.9/2021, 12/2021, 11/2021, 14/2021, 13/2021, 15/2021 ``` **==> picture [7 x 8] intentionally omitted <==** ``` BENOJ C AUGUSTIN RAFEEK. V.K. P.PARVATHY NAZRIN HALLAJ SHILPA M.RAJAN ``` ``` THIS EXECUTION FIRST APPEAL HAVING COME UP FOR HEARING ON 24.01.2023, ALONG WITH Ex.FA.9/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Ex.FA Nos.9/2021, 12/2021, 11/2021, 14/2021, 13/2021, 15/2021 ``` ``` 10 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.SOMARAJAN ``` ``` TUESDAY, THE 24[TH] DAY OF JANUARY 2023 / 4TH MAGHA, 1944 ``` ``` EX.FA NO. 15 OF 2021 ``` ``` AGAINST THE ORDER/JUDGMENTOS 1233/1980 OF III ADDITIONAL DISTRICT ``` ``` COURT, THRISSUR ``` ## **`APPELLANT/1ST RESPONDENT:`** ``` COTTON CORPORATION OF INDIA LIMITED, AIR INDIA BUILDING, 12[TH ]FLOOR, NARIMAN POINT, MUMBAI-400 021, REPRESENTED BY PRESENTLY REPRESENTED BY ITS GENERAL MANAGER, 5/7, B.R.NAGAR, 2[ND] FLOOR, KOTHARI LAYOUT, 4TH STREET, SINGANALLUR, COIMBATORE-641 005. BY ADVS. K.G.BALASUBRAMANIAN AMBILY PREMKUMAR ``` ## **`RESPONDENTS/PETITIONER & RESPONDENT 2:`** ``` 1VASUDEVAN, S/O.KUNNATHULLY THACHU, AGED ABOUT 64 YEARS, CHIYYARAM VILLAGE/DESOM-680 026, THRISSUR TALUK/DISTRICT. 2RAJAGOPAL TEXTILES PVT. LTD., ECHAL KARANJI DISTRICT, KOLAPURA, MAHARASHTRA, NOW REGISTERED OFFICE AT MULAMKUNNATHUKAVU P.O., PIN-680 581, THRISSUR. BY ADVS. NAGARAJ NARAYANAN SAIJO HASSAN BENOJ C AUGUSTIN RAFEEK. V.K. P.PARVATHY ``` ``` THIS EXECUTION FIRST APPEAL HAVING COME UP FOR HEARING ON 24.01.2023, ALONG WITH Ex.FA.9/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Ex.FA Nos.9/2021, 12/2021, 11/2021, 14/2021, 13/2021, 15/2021 ``` ``` 11 ``` ## **`JUDGMENT`** ``` These are the six appeals against the common ``` ``` order passed by the execution court in six ``` ``` applications that were filed by the claimant under ``` ``` Order 21 Rule 58 CPC pertaining to the property under attachment in execution. The original ``` ``` decree was passed by the High Court of Bombay, ``` ``` which was later transferred to the execution ``` ``` court within the State of Kerala, i.e., District ``` ``` Court, Trissur, with a certification (precepts) ``` ``` for the purpose of its execution as against the ``` ``` property situated within its territorial ``` ``` jurisdiction. When the matter came up before the ``` ``` District Court, Trissur, an order of attachment was passed in execution against which six claimants who claimed to be the owners of the ``` ``` property came up with an application under Order ``` ``` Ex.FA Nos.9/2021, 12/2021, 11/2021, 14/2021, 13/2021, 15/2021 ``` **==> picture [13 x 8] intentionally omitted <==** ``` XXI, Rule 58. All of these applications were disposed of by the trial court under a common order allowing respective claim petitions. Consequently, the attachment over the respective properties were lifted. ``` ``` Admittedly, the claim petitioners are ``` ``` claiming their right, title and interest over the property based on the document of transfer of the year 2012. But the attachment was passed only in the year 2019 after the expiry of more or less seven years. Hence, the argument advanced by the ``` ``` appellant, the decree holder, that the matter would come under the purview of Section 53 of the Transfer of Property Act cannot be accepted on the reason that the application is highly belated ``` ``` and time barred. No such application was submitted within a period of three years and no suit was instituted for that purpose within that ``` ``` Ex.FA Nos.9/2021, 12/2021, 11/2021, 14/2021, 13/2021, 15/2021 ``` **==> picture [13 x 8] intentionally omitted <==** ``` time. But, the learned counsel for the appellant strongly relied on the decision rendered by the Apex court inShrimant Shamrao Suryavanshi And Another v. Pralhad Bhairoba Suryavanshi [2002 KHC ``` ``` 1215] and drawn the attention of this Court in paragraph 18 of the said judgment, wherein, it is held that there cannot be any scope of applying any period of limitation or even the principal behind limitation as against the defence available. It was submitted that the attachment made over the property by the decree holder should be treated as a defence available to the decree holder and as such cannot be brought under the purview of any of the provisions contained in ``` ``` the Limitation Act. But an application for ``` ``` attachment should be and must be construed as a protective measure available to the party concerned, either the plaintiff or the decree ``` ``` Ex.FA Nos.9/2021, 12/2021, 11/2021, 14/2021, 13/2021, 15/2021 ``` **==> picture [13 x 8] intentionally omitted <==** ``` holder, as the case may be, so as to protect the execution of a decree or a decree that may be passed. It is not a right of defence available to ``` ``` a person. Even a counter claim or a cross ``` ``` objection cannot be brought under the purview of ``` ``` a defence available to the party, either the ``` ``` plaintiff or the decree holder or any of the ``` ``` person concerned. When there is a counter claim, ``` ``` of a separate suit for all purposes. So, the defence available to the person must be ``` ``` understood as the right to defend a claim raised or the entitlement thereof. The very same legal position would apply as far as an application or suit whatever it may be, which would come under the purview of section 53 of the Transfer of Property Act. Necessarily, an application or suit or proceeding initiated after the expiry of three ``` ``` Ex.FA Nos.9/2021, 12/2021, 11/2021, 14/2021, 13/2021, 15/2021 ``` ``` 15 ``` ``` years from the date of execution of the ``` ``` alienation or the transfer cannot be maintained under Section 53 of the Act. Regarding notice of ``` ``` alienation to any creditor or any person litigating under creditor or the decree holder in ``` ``` any suit, it would stand bound by the mandate under Section 3 of the Transfer of Property Act ``` ``` by bringing the concept of constructive notice under the expression “when a person is said to have notice” by which a mere abstention from making an enquiry which he ought to have made ``` ``` would also come under the purview of constructive ``` ``` notice, especially, when there is delivery of possession effected over the property in ``` ``` furtherance of the alleged sales. All these sale ``` ``` deeds were executed to strangers, the respective ``` ``` claimants. Necessarily, delivery of property ``` ``` Ex.FA Nos.9/2021, 12/2021, 11/2021, 14/2021, 13/2021, 15/2021 ``` ``` 16 ``` ``` constitute constructive notice. Hence, there is ``` ``` no reason for interfering with the common order of the trial court. All the appeal fails, ``` ``` dismissed, but without cost. ``` ``` Sd/- ``` ``` P.SOMARAJAN JUDGE ``` ``` rkr-24/01 ```