Guruvayurappan v. Syed Muhammed

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN FRIDAY, THE 9[TH] DAY OF FEBRUARY 2024 / 20TH MAGHA, 1945** **OP(C) NO. 59 OF 2024** **AGAINST OS.NO. 145/2023 OF ASSISTANT SESSIONS COURT/PRINCIPAL SUB COURT / COMMERCIAL COURT, PALAKKAD** ## **PETITIONER/PETITIONER/PLAINTIFF:** GURUVAYURAPPAN AGED 49 YEARS S/O SETHU, MANIKKAPADAM HOUSE, VADAKKENCHERRY P.O, VADAKKENCHERRY I VILLAGE, ALATHUR TALUK, PALAKKAD DISTRICT, PIN – 678 683 BY ADVS. PRABHU K.N. MANEESH.R ## **RESPONDENT/RESPONDENT/DEFENDANT:** SYED MUHAMMED AGED 54 YEARS S/O. ABDUL KHADER, KARUVAPPADAM, ANCHUMOORTHY MANGALAM POST, VADAKKENCHERY II VILLAGE, ALATHUR TALUK.PALAKKAD DISTRICT, PIN - 678682 BY ADVS. PARVATHI S ADITHYA RAJEEV(K/846/2015) THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 09.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **O.P.(C).No. 59 of 2024** ..2.. ## **J U D G M E N T** ## _**Dated this the 9[th] day of February, 2024**_ **Petitioner herein is the plaintiff in O.S.No.145/2023 pending before the Sub Court, Palakkad. He is aggrieved by Ext.P12 order, which dismissed an application for attachment before judgment under Order XXXVIII, Rule 5 of the Code of Civil Procedure. The bare facts necessary for the disposal of this Original Petition are as follows:** **The petitioner/plaintiff advanced a sum of Rs.50 lakhs to the respondent/defendant on the strength of a promissory note executed by the respondent/defendant on 17.03.2020. When the amount was not returned as promised, the petitioner/plaintiff issued notice to the** **defendant on 15.03.2023, which evoked no response. It was in such circumstances, that the suit was filed for recovery of money. Along with the suit,** **O.P.(C).No. 59 of 2024** **==> picture [37 x 9] intentionally omitted <==** **the petitioner filed Ext.P6 application for attachment of the scheduled property. The respondent/defendant filed Ext.P10 objection contending** _**inter alia**_ **that, the scheduled property has already been sold in the year 2010, as per document no.2262/10 (erroneously referred to as Document no.2979) of SRO Alathur and that the respondent/defendant is not the owner of the property any more. Taking stock of the above contention, the learned Sub Judge dismissed the attachment petition, by virtue of Ext.P12 order.** **2. Learned counsel for the petitioner submits that, pursuant to Ext.P10 objection of the respondent/defendant, it was urged by the petitioner before the court below that the transaction of the year 2010, canvassed in that objection, is a fraudulent transfer. It was also pointed out that, the transferee under the document has re-transfered the property to the wife and children of the respondent in the year** **O.P.(C).No. 59 of 2024** **==> picture [37 x 9] intentionally omitted <==** **2015. According to the counsel, these aspects are not referred to or dealt with in the impugned Ext.P12 order. Before this Court, it was urged that the wife and children of the defendant/respondent have absolutely no means to purchase the scheduled property in the year 2015. The very transfer of the year 2010 was fraudulent in nature, hit by Section 53 of the Transfer of Property Act. It was also pointed out that, the respondent/defendant was all along residing in the same scheduled property,** _**dehors**_ **the transfers claimed. This aspect is clear from the address shown in the document of the year 2015. In such circumstance, Ext.P12 order cannot be sustained is the submission. Learned counsel would rely upon two judgments of this Court, one by a Full Bench in** _**Verizon Builders and Developers Ltd. (M/s.) and another v. Jyothi Susan John and Others [2019 (1) KLT 100] and**_ **the second by a Division Bench in** _**Mohammed P.V. v. Mannil Abdul Gadhafi alias Abdul Gadhafi Mannil and others [2022 (6) KLT 269].**_ **O.P.(C).No. 59 of 2024** **==> picture [37 x 9] intentionally omitted <==** _**L**_ **earned counsel would submit that, going by Section 53 of the Transfer of Property Act, every transfer made with an intent to defeat the creditor will be hit by Section 53 of the Transfer of Property Act.** **3. These submissions were seriously opposed by the learned counsel for the respondent, pointing out that, the challenge with respect to the document is not something which has been raised and agitated before the court below, as is clear from the conspicuous absence of such a plea in the impugned Ext.P12 order.** **4. This Court, having heard the learned counsel for the respective parties, notice that, the cause of action for the instant suit, as stated in Ext.P5 plaint arose on 17.03.2020, the date on which the defendant borrowed Rupees 50 lakhs and on 15.03.2023, when the plaintiff sent a registered lawyer's notice. This Court cannot** **O.P.(C).No. 59 of 2024** **==> picture [37 x 9] intentionally omitted <==** **appreciate the contention of the petitioner that the transfer made in the year 2010 is a fraudulent transfer, for two reasons. Firstly, after filing Ext.P10 objection, nothing is placed on record by the petitioner before the court below, assailing the sale deed of the year 2010. There is no contention urged as regards the fraudulent nature, if any, of such transaction, going by the records.** **5. Secondly, this court notice that, since the cause of action has arisen only on 17.03.2020, a transaction which was effected as far back as in 2010 and the re-transfer claimed of the year 2015, cannot be with an intent to defeat the creditor, the petitioner herein, since, the very transaction by and between the petitioner and the respondent took place only in the year 2020.** **6. In such circumstances, this court finds little merit in the instant Original Petition. The decisions which are sought to be relied upon by** **O.P.(C).No. 59 of 2024** **==> picture [37 x 9] intentionally omitted <==** **the petitioner, are not liable to be considered at this stage, in the above referred facts and circumstances.** **In this circumstances, this Original Petition fails and the same will stand dismissed.** Sd/- **C. JAYACHANDRAN JUDGE** **TR** **O.P.(C).No. 59 of 2024** ..8.. ## **APPENDIX OF OP(C) 59/2024** |PETITIONER EXHIBITS|| |---|---| |Exhibit P1|TRUE COPY OF THE PROMISSORY NOTE EXECUTED| ||BY THE RESPONDENT/DEFENDANT DATED 17-3-| ||2020| |Exhibit P2|TRUE COPY OF THE REGISTERED LAWYER NOTICE| ||SENT BY THE PETITIONER/PLAINTIFF TO THE| ||RESPONDENT/DEFENDANT DATED 15-03-2023| |Exhibit P3|TRUE COPY OF POSTAL RECIPE OF THE LAWYER| ||NOTICE DATED 16-03-2023| |Exhibit P4|TRUE COPY OF THE POSTAL ACKNOWLEDGEMENT| ||OF THE LAWYER NOTICE DATED 17-03-2023| |Exhibit P5|TRUE COPY OF THE PLANT IN O.S.NO.145/2023| ||ON THE FILE OF PRINCIPAL SUB COURT| ||PALAKKAD, DATED 31.07.2023| |Exhibit P6|TRUE COPY OF THE I.A.NO.2/2023 IN| ||O.S.NO.145/2023 ON THE FILE OF THE| ||PRINCIPAL SUB COURT PALAKKAD ALONG WITH| ||ATTACHMENT SCHEDULE DATED 31.07.2023| |Exhibit P7|TRUE COPY OF THE ORDER PASSED BY THE| ||PRINCIPAL SUB COURT PALAKKAD, DATED| ||02.08.2023 IN I.A.NO.2/2023 IN| ||O.S.NO.145/2023| |Exhibit P8|TRUE COPY OF THE INTERIM ORDER PASSED BY| ||THIS HONOURABLE COURT IN OP(C) NO. 1670| ||OF 2023 DATED 23.08.2023| |Exhibit 9|TRUE COPY OF THE JUDGMENT PASSED BY THIS| ||HONOURABLE COURT IN OP(C) NO. 1670 OF| ||2023 DATED 20.09.2023| |Exhibit P10|TRUE COPY OF THE COUNTER FILED BY THE| ||RESPONDENT IN EXHIBIT P6 DATED 03.10.2023| |Exhibit P11|TRUE COPY OF THE TITLE DEED NO 2979/2015| ||OF SRO ALATHUR DATED 21.10.2015| |Exhibit P12|TRUE COPY OF THE ORDER PASSED BY THE| ||PRINCIPAL SUB COURT PALAKKAD, DATED| ||10.10.2023 IN I.A.NO.2/2023 IN| ||O.S.NO.145/2023| |Exhibit P13|TRUE COPY OF THE TITLE DEED NO 2262/2010| ||OF SRO ALATHUR DATED 12.05.2010|