# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`**
# **`PRESENT`**
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THE HONOURABLE MR. JUSTICE T.R.RAVI
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THURSDAY, THE 25[TH] DAY OF JANUARY 2024 / 5TH MAGHA, 1945
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FAO NO. 9 OF 2024
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AGAINST THE ORDER DATED 18.11.2023 IN IA NO.4/2023 IN CS 4/2023 OF
ASSISTANT SESSIONS COURT/SUB COURT, THIRUVALLA
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## **`APPELLANT/RESPONDENT/2ND DEFENDANT:`**
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JAGAN JACOB
AGED 49 YEARS
PADUVATHIL HOUSE, NEAR VENGAL CHURCH,
PERUMTHURUTHY, THIRUVALLA,
PATHANAMTHITTA DISTRICT, PIN – 689 113
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BY ADVS.
S.SREEDEV
ENOCH DAVID SIMON JOEL
RONY JOSE
LEO LUKOSE
KAROL MATHEWS SEBASTIAN ALENCHERRY
DERICK MATHAI SAJI
KARAN SCARIA ABRAHAM
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## **`RESPONDENT/PETITIONER/PLAINTIFF:`**
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DOHA BANK QPSC
A BANKING COMPANY INCORPORATED IN DOHA QATAR AND
FUNCTIONING UNDER A LICENSE ISSUED BY
RESERVE BANK OF INDIA UNDER THE BANKING REGULATION ACT
1949, HAVING ITS BRANCH OFFICE AT 1ST FLOOR,
LULU MALL, 34/1000, EDAPPALLY, KOCHI
REPRESENTED BY ITS AUTHORIZED SIGNATORY, PIN – 682 024
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BY ADV D.PREM KAMATH
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THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON
25.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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FAO NO.9 OF 2024
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## T.R.RAVI.J
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## FAO No.9 of 2024
-------------------------------------------------------Dated this the 25[th] day of January, 2024
## JUDGMENT
The 2[nd] defendant has filed this appeal against an order of attachment of his property. The order is impugned on three grounds. (i) there is no privity of contract between the appellant and the plaintiff. (ii) the application for attachment is vague and does not satisfied the requirements of the order XXXVIII Rule 5. and (iii) there is no unjust enrichment since the amounts
that have reached the appellant are the amounts which are due to the appellant from the 1[st] defendant in the suit. The brief facts are as follows;
2. The 1[st] defendant was maintaining an account with the plaintiff Bank, in which there had been no
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transaction for over four years and minimum balance was also not maintained. The plaintiff closed the account on 04.11.2022 with intimation to the 1[st] defendant. The 1[st] defendant who had been issued a cheque book at the time of opening of the account did not return the cheque book and instead issued two cheques for a total amount of Rs.50 lakhs in favour of the 2[nd] defendant 31.12.2022, after the closure of the account. The 2[nd] defendant presented the cheque for collection through the 3[rd] defendant and owing to the failure of the plaintiff to communicate to the clearing house about the closure of the account and return of cheques, within the time stipulated for clearing, the cheques happened to be honoured and amounts were credited to the account of the 2[nd] defendant. It is stated that officers of the plaintiff had approached the 2[nd] defendant in February, 2023
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informing the 2[nd] defendant about the mistake that has happened but the 2[nd] defendant had expressed inability to return the amount stating that the amounts received are amounts payable to the 2[nd] defendant by the 1[st] defendant. Suit is filed in the above circumstances. Since
amounts belonging to the Bank had wrongly been credited to the account of the 2[nd] defendant, the Bank had filed an application for attachment pending judgment, of the properties of the 2[nd] defendant. An order of conditional attachment was issued which has later been confirmed by the impugned order. The 2[nd] defendant has hence filed this appeal.
3. The main contention raised is that there is no privity of contract between the appellant and the plaintiff and the appellant is not liable to pay any amount to the Bank. That contention cannot be
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countenanced since the suit is not filed on the basis of any contract between the parties. The suit is filed on the allegation that amounts which belonged to the plaintiff have wrongly reached the 2[nd] defendant due to a mistake. The 2[nd] defendant may be entitled to get money from the 1[st] defendant for which he is free to initiate any action but the 2[nd] defendant does not have any claim against the Bank and the Bank does not owe any money to the 2[nd] defendant. Whether there was a mistake in the payment or not and other matters relating to the claim made by the plaintiff, need to be answered in the suit after a full-fledged trial. The present order is only to safeguard the interest of the parties. An interlocutory order which has been issued for the purpose of ensuring that a decree if obtained is not defeated, cannot be interfered with in appeal unless
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there is serious illegality in the passing of the order. The counsel for the appellant contends that, Ext.R1(a) petition only makes a vague averment that the first and second defendants are trying to evade the repayment of the amount due to the plaintiff and that it is reliably learnt that in order to delay and defeat the execution of the decree which may be passed against the 2[nd] defendant, he is trying to dispose of his properties which are scheduled to the application. A reading of the entire application will show that the plaintiff has stated the entire sequence of events which has resulted in the amount belonging to the plaintiff reaching the hands of the 2[nd] defendant. May be the 2[nd] defendant is a victim of a fraud played by the 1[st] defendant. That does not however mean that that he will be entitled to retain the amount which did not belong to him, if so found after
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the trial. The court below has noted that the 2[nd] defendant is not willing to part with the amounts received and it is in the above circumstance that the order of attachment has been confirmed. I do not think that the averments in the application are vague and do not meet the requirements of Order XXXVIII Rule 5. The third reason stated is that the Court below, having found that the 2[nd] defendant had brought the money bonafide believing it to be the amounts due from the 1[st] defendant, ought not to have issued an order of attachment of the properties belonging to the 2[nd] defendant. It is contended that the plaintiff should have sought attachment of the properties of the 1[st] defendant who is principally liable. I do not think that such a contention is also available. As far as the the 1[st] defendant is concerned, if the allegations are true, it
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may lead to a conclusion that he had wrongly issued a cheque with full knowledge that the account has been closed. Apart from that the Bank was not holding any amount belonging to the 1[st] defendant since the account itself was closed. The Bank has admittedly credited the account of the 2[nd] defendant. In such circumstances, I do not find anything wrong in the Court below ordering an attachment of the properties of the 2[nd] defendant.
4. The counsel for the appellant relied on the decision of a Full Bench of this Court in Sadasivan K. v. Surendradas [2020 (5) KHC 461] wherein this Court had laid down the guidelines for issuing an order of attachment. In paragraph No.27 of the judgment, the Court has stated the guiding principles regarding the powers of Court. The three aspects which have been pointed out by the Court are;
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“(1) that an order can be issued only if the circumstance exist, as are stated in Order XXXVIII Rule 5, to the satisfaction of the Court,
- (2) the order shall not be issued on the assumption
that no harm would be done thereby to the defendant or that the defendant would not be prejudiced and
- (3) that the affidavit in support of the contentions of applicant should not be vague.”
I have already found that the affidavit in support of the contentions of the plaintiff are not vague. The Court below has not made any assumption that no harm will be done to the defendant or that the defendant would not be prejudiced. Instead, the Court below has specifically found that the 2[nd] defendant is in possession of the amounts belonging to the plaintiff, though not due
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to any fault of the 2[nd] defendant. The Court was also found to the satisfaction that the circumstances exist, as are stated in Order XXXVIII Rule 5, particularly since the 2[nd] defendant was not willing to part with the amounts which have been wrongly came into his possession.
5. In the above circumstances, I do not think that any of the guiding principles have been violated by the Court below. The appeal fails and is hence dismissed.
Sd/-
T.R.RAVI JUDGE
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## **`APPENDIX OF FAO 9/2024`**
## **`RESPONDENT’S ANNEXURES`**
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ANNEXURE R1(A)
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TRUE COPY OF THE I.A.NO. 4 OF 2023 IN C.S.NO.4
OF 2023 FILED BY THE 1ST RESPONDENT BANK BEFORE
THE HONOURABLE COMMERCIAL COURT AT THIRUVALLA
ON 20.05.2023.
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ANNEXURE R1(B)TRUE COPY OF THE NOTICE DATED 15.02.2023
ANNEXURE R1(C)TRUE COPY OF THE BOOKING RECEIPT OF THE POSTAL
DEPARTMENT DATED 16.02.2023.
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ANNEXURE R1(D)TRUE COPY OF THE PRINTOUT OF THE POSTAL
CONSIGNMENT TRACKING.
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ANNEXURE R1(E)TRUE COPY OF THE BANK STATEMENT PERIOD OF
01.06.2018 TO 05.03.2023.
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ANNEXURE R1(F)TRUE COPY OF THE CHEQUE BEARING NO. 261758 AN
AMOUNT OF RUPEES TWENTY FIVE LAKHS DATED
31.12.2022
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ANNEXURE R1(G)TRUE COPY OF THE CHEQUE BEARING NO. 261759 AN
AMOUNT OF RUPEES TWENTY FIVE LAKHS DATED
31.12.2022
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//TRUE COPY// PA TO JUDGE
