High Court of KeralaSingle Judge2020-08-11Original petition disposed of

Kabeer Husain Minanna, Jasmin Mohammed Fazaludeen and M/S Anvita Builders Pvt. Ltd. v P. T. Joseph

Case / Petition Number:OP(C).No.1082 OF 2020

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Devan Ramachandran
Judgment Date: 2020-08-11
Court Decision / Holding: Original petition disposed of. The High Court vacated all observations in Exhibit P13 against the petitioners to the extent they were adverse, holding that the respondent’s specific averment in Exhibit P12 that he did not intend to alienate the schedule property should have terminated the attachment inquiry. However, the Court confirmed the dismissal of Exhibit P11 (attachment petition) to the extent it was based on grounds outside the respondent’s avowal. The Trial Court is directed to dispose of the suit in accordance with law, granting both sides opportunity to substantiate their claims, and no costs shall be awarded to either side.
Final Disposition: Original petition disposed of

Parties to the Case

Appellants / Petitioners

Kabeer Husain Minanna
Jasmin Mohammed Fazaludeen
M/S Anvita Builders Pvt. Ltd.

Respondents

P. T. Joseph

Legal Representation & Advocates

Counsels for Petitioners

• K.R. Vinod (Adv.)

Counsels for Respondents

• George Poonthottam (Sr.)
• Nisha George
• Philip T. Varghese

Case Synopsis & Summary

This Original Petition (OP(C) No.1082 of 2020) challenges an order in IA 3294/2019 in OS 246/2019 passed by the Principal Sub Court, Ernakulam, which rejected an attachment petition under Order XXXVIII Rule 5 CPC. The petitioners sought attachment of the property scheduled in the suit to secure a decree around Rs.14 crores against respondent P. T. Joseph, arguing that the respondent was likely to alienate the property to defeat or delay the decree. The Sub Court’s Exhibit P13 order assessed the plaint and defence, concluding that there was no prima facie case and that the respondent’s transactions with the petitioners were suspicious; consequently, it dismissed the attachment petition. The High Court notes that the respondent, in his objections (Exhibit P12), asserted he had no intention to alienate the schedule property and that the property had already been mortgaged with Federal Bank, with title deeds in the bank’s possession. Observing that the respondent’s unequivocal averment should have ended the matter, the Court holds that the Trial Court erred in its reasoning and proceedings under Order XXXVIII Rule 5 CPC. The High Court vacates the observations against the petitioners in Exhibit P13 to the extent of their challenge, while confirming the dismissal of the attachment petition to the extent it rested on other grounds. The matter is remitted to the Trial Court to proceed in accordance with law, with no cost orders.

Provisions of Law Cited

Order XXXVIII Rule 5 of the Code of Civil Procedure (CPC)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contended that attachment under Order XXXVIII Rule 5 CPC was warranted to secure a meaningful decree in OS 246/2019, especially since they claimed a decree of approximately Rs.14 crores and asserted there was no adequate security or available assets to satisfy a future decree. They argued that the Trial Court failed to apply the statutory criteria, ignored evidence suggesting the respondent’s attempt to defeat execution by alienating the schedule property, and relied on suspicious transactions without properly testing bonafides. They relied on the record (Exhibits P11 and P12) to show that the respondent had properties and was capable of satisfying a decree, and that the court should have recorded the respondent’s avowal as a material factor in considering attachment. They urged the Court to vacate Exhibit P13 and allow the attachment petition in the interest of providing effective relief and preserving assets for satisfaction of any decree.

Contentions of Respondents

The respondent contended that there was no intention to alienate the attachment property, as evidenced by Exhibit P12. He argued that the schedule property was mortgaged to Federal Bank and that the original title deeds were with the bank, indicating that alienation was not contemplated and that attachment was unwarranted. He highlighted his proprietary turnover and other assets to suggest the movants’ case lacked the requisite prima facie basis. He urged the petition be dismissed for want of bonafide and because the bank and other assets provided sufficient security, rendering attachment unnecessary and unjustified.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Skoda Auto India Pvt Ltd., Maharashtra v. M/s. St. Antony's Trading Company and Others	2018 (1) KHC 574	Positive	The High Court relied on this decision to underscore the need for a prima facie case and fair application of Order XXXVIII Rule 5 CPC, reflecting the requisites for attachment in execution proceedings.
Smitha v. Varghese P.C. And another	ILR 2016 (2) Ker 676	Positive	Cited to support the court’s approach to evaluating the prima facie case and the evidence required to justify attachment under the rule.
Gurpreet Singh v. Abdul Gani Dar	2011 KHC 2190	Positive	Referenced as part of the reasoning on attachment and the evidentiary considerations in the context of securing a decree.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 11TH DAY OF AUGUST 2020 / 20TH SRAVANA, 1942** ## **OP(C).No.1082 OF 2020** **AGAINST THE ORDER IN IA 3294/2019 IN OS 246/2019 OF PRINCIPAL SUB COURT, ERNAKULAM** ## **PETITIONERS/PETITIONERS/PETITIONERS:** **1 KABEER HUSAIN MINANNA, AGED 61 YEARS, S/O.MUHAMMED ISMAIL, VARICKAPLACKAL, CHURULIKODE P.O., PATHANAMTHITTA, PIN-689 668.** **2 JASMIN MOHAMMED FAZALUDEEN, AGED 59 YEARS W/O.KABEER HUSAIN MINANNA, VARICKAPLACKAL, CHURULIKODE P.O., PATHANAMTHITTA, PIN-689 668.** **3 M/S. ANVITA BUILDERS PVT.LTD., 40/137, VADAYATT HOUSE, NETHAJI ROAD, SUBASH LANE, EDAPALLY P.O., PALARIVATTOM-682 024, REPRESENTED BY ITS MANAGING DIRECTOR, P.G.ANILKUMAR, AGED 54, S/O.P.R.GOVINDAN, SREEVILLA, SUBHASH COLONY, SOUTH JANATHA ROAD, PALARIVATTOM, KOCHI-682 025.** **BY ADV. SRI.K.R.VINOD** ## **RESPONDENT/RESPONDENT/RESPONDENT:** **P.T.JOSEPH, AGED ABOUT 66, S/O.P.T.THOMAS, THE PROPRIETOR, CHERYL ENTERPRISES, 48/425-P, EDAPALLY RAGHAVANPILLAI ROAD, ELAMAKKARA, KOCHI-682 026, RESIDING AT 11-C, CVC CALISTA, EDAPALLY RAGHAVANPILLAI ROAD, ELAMAKKARA, KOCHI-682 026.** **R1 BY ADV. SRI.GEORGE POONTHOTTAM (SR.) R1 BY ADV. SMT.NISHA GEORGE R1 BY SRI.PHILIP T.VARGHESE** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 11.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP(C).No.1082 OF 2020 2 ## **JUDGMENT** This Original Petition has been filed by the plaintiffs in O.S.No.246/2019 on the files of the Principal Sub Court, Ernakulam, impugning Exhibit P13 order, as per which, I.A.No.3294/2019 filed by them seeking attachment of the properties scheduled thereto - under the provisions of Order XXXVIII Rule 5 of the Code of Civil Procedure ('CPC' for short) - has been rejected on various grounds, including that a prima facie case has not been made out against the respondent. 2. The petitioners vehemently predicate that the findings of the learned Sub Judge in Exhibit P13 order are not merely inappropriate, but unnecessary, since what has been done by the learned Judge is to virtually hold that the plaint claim is incapable of being granted or decreed. They say that they have sought a decree of approximately Rs.14 crores against the respondent, for which there is no security available and that, therefore, they had preferred the aforementioned application, a copy of which has been placed on record as Exhibit P11, asserting that the respondent 'is taking hasty steps to alienate the schedule property in order to defeat and delay the decree passed in our favour' (sic). They say that, however, the Trial Court, without considering any of the criterion applicable to Order XXXVIII Rule 5 of the CPC, dismissed the application through OP(C).No.1082 OF 2020 3 Exhibit P13 order; and thus pray that the said order be vacated and their application be allowed. 3. I have heard Sri.K.R.Vinod, learned counsel appearing for the petitioners and Sri.George Poonthottam, learned Senior Counsel, instructed by Sri.Philip T.Varghese, learned counsel appearing for the respondent. 4. When I examine the impugned order, namely Exhibit P13, it is without doubt that the learned Judge has gone into great detail regarding the plaint claim and the defence offered by the respondent. The learned Judge has also found, towards the end of the order, that no allegation is made by the petitioners that the respondent has no other property or that he does not have enough assets to honour a decree that may be passed in the suit. The learned Judge further says that the transactions between the petitioners and the respondent are highly suspicious and therefore that a prima facie case having not been made out in favour of the former, an attachment under Order XXXVIII Rule 5 of CPC cannot be granted. The court has relied upon various judgments of this Court, including **Skoda Auto India Pvt Ltd., Maharashtra v. M/s.St.Antony's Trading Company and Others** (2018 (1) KHC 574), **Smitha v. Varghese P.C. And another** (ILR 2016 (2) Ker 676) and **Gurpreet Singh v. Abdul Gani Dar** (2011 KHC 2190) in support of its conclusions. OP(C).No.1082 OF 2020 4 5. Even when I go through the impugned order, it is without doubt that it goes extremely in detail in its analysis of the assertions and counter assertions of the parties, but it is rather surprising that the learned Judge did not notice the specific averment of the respondent that he does not intend to sell the attachment schedule property. The objections of the respondent to Exhibit P11 application are available on record as Exhibit P12, in which, apart from asserting that his proprietary concern has a turnover of over Rs.222 crores and that he has various other assets, he unequivocally submits 'I have no intention to alienate the schedule property' (sic). Of course, he further states that the attachment schedule property has already been mortgaged by him with the Federal Bank, Palarivattom Branch, as security for certain financial facilities availed of by him to the tune of Rs.15 crorers and, therefore, the original title deeds are also in possession of the said Bank, along with those of various other properties, which have also been offered as security. 6. Inevitably, when the respondent has eunequivocally undertaken, through Exhibit P12 objections, that he has no intention to alienate the attachment schedule property, the Trial Court should have ended the matter there and dismissed Exhibit P11 application, recording this averment. This is because, going by the provisions of Order XXXVIII Rule 5 of the CPC, it is only where a Court is satisfied OP(C).No.1082 OF 2020 5 that the defendant with the intent to obstruct or delay the execution of the decree is about to dispose of the whole or any part of the property can it entertain such an application. 7. In the case at hand, even though the petitioners have alleged that the respondent is likely to sell the attachment schedule property, the latter has made it clear that he does not even intend to alienate the same. Ineluctably, therefore, the Trial Court obtained no further reason to order the application or to have made any observations and remarks on the merits of the allegations and assertions in the plaint or in the written statements, unless the materials on record lead it to believe that the said averment of the respondent was not bonafide. However, no such has been recorded in the order, nor do I see any allegation to such effect even from the side of the petitioners herein. In the afore circumstances, this original petition is disposed of, vacating all the observations in Exhibit P13 order as against the petitioners; however, confirming it to the extent to which it dismisses Exhibit P11 application, in view of the specific averment of the respondent in Exhibit P12 objections that he does not intend to alienate the attachment schedule property, which is also hereby recorded. OP(C).No.1082 OF 2020 6 Needless to say, the Trial Court will now dispose of the suit as per law untrammeled by anything contained in Exhibit P13 order and after affording necessary opportunity to both sides in substantiation of their respective claims. In the nature of the factual factors noticed, I make no order as to costs and direct the parties to suffer their respective costs. **Sd/-** **DEVAN RAMACHANDRAN** **JUDGE** ## **stu** OP(C).No.1082 OF 2020 7 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE PLAINT IN OS NO.246/2019 IN THE FILES OF THE PRINCIPAL SUB COURT, ERNAKULAM.** - **EXHIBIT P2 TRUE COPY OF THE AGREEMENT DATED 27.05.2013.** **EXHIBIT P3 TRUE COPY OF THE SALE AGREEMENT DATED 17.02.2017.** - **EXHIBIT P4 TRUE COPY OF THE AGREEMENT DATED 27.02.2017.** - **EXHIBIT P5 TRUE COPY OF THE FINAL SALE AGREEMENT DATED 07.04.2017 BY SUPERSEDING ALL PREVIOUS AGREEMENTS EXECUTED BETWEEN THE PETITIONERS AND THE RESPONDENT.** - **EXHIBIT P6 TRUE COPY OF THE AGREEMENT DATED 17.08.2017 EXECUTED BETWEEN THE PETITIONERS AND RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF THE SALE DEED NO.2321/2017 OF SRO, THRIKKAKARA DATED 18.08.2017.** **EXHIBIT P8 TRUE COPY OF THE ACKNOWLEDGMENT DATED 14.02.2019 ISSUED BY THE AUTHORISED PERSON OF THE RESPONDENT MR.CHUMMAR THOMAS JOHN** **EXHIBIT P9 TRUE COPY OF THE DEMAND LEGAL NOTICE DATED 13.08.2019** **EXHIBIT P10 TRUE COPY OF THE REPLY NOTICE SENT BY THE RESPONDENT THROUGH HIS COUNSEL DATED 07.09.2019** **EXHIBIT P11 TRUE COPY OF THE IA 3294/2019, THE ATTACHMENT PETITION FILED BY THE PETITIONERS** **EXHIBIT P12 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENT TO EXT. P11 ATTACHMENT PETITION** **EXHIBIT P13 CERTIFIED COPY OF THE ORDER IN IA 3294/2019 IN OS 246/2019 OF PRINCIPAL SUB COURT, ERNAKULAM** OP(C).No.1082 OF 2020 8 ## **RESPONDENT'S EXHIBITS:** **EXHIBIT R1 TRUE COPY OF THE JOINT DEVELOPMENT AGREEMENT EXECUTED BY THE PLAINTIFF DATED 23.10.2019** **EXHIBIT R1(a) TRUE COPY OF THE FINAL NO OBJECTION CERTIFICATE ISSUED BY THE FIRE AND RESCUE DEPARTMENT DATED 31.12.2018** **EXHIBIT R1(b) TRUE COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD DATED 28.12.2018** **EXHIBIT R1(c) TRUE COPY OF THE OCCUPANCY CERTIFICATE DATED 14.01.2019** **EXHIBIT R1(d) TRUE COPY OF THE ATTESTED ACCOUNT EXTRACT OF THE AMOUNT PAYABLE BY THE DEFENDANT AFTER DEDUCTING THE AMOUNT PAID BY HIM AFTER THE EXECUTION OF THE SALE DEED DATED 18.08.2017** **EXHIBIT R1(e) TRUE COPY OF THE CAVEAT PETITION INSTITUTED BY THE PLAINTIFFS BEFORE THE SUB COURT, ERNAKULAM DATED 28.03.2018 SERVED ON THE DEFENDANT** **EXHIBIT R1(f) TRUE COPY OF THE CAVEAT PETITION INSTITUTED BY THE PLAINTIFFS BEFORE THE SUB COURT, ERNAKULAM DATED 03.07.2018 SERVED ON THE DEFENDANT** **EXHIBIT R1(g) TRUE COPY OF THE MEMORANDUM OF UNDERSTANDING EXECUTED BY THE 3RD PLAINTIFF AND THE DEFENDANT DATED 29.04.2013** **EXHIBIT R1(h) TRUE COPY OF THE LETTER ISSUED BY THE 3RD PLAINTIFF TO THE ASSISTANT EXECUTIVE ENGINEER, KSEB, THRIKKAKARA** **EXHIBIT R1(i) TRUE COPY OF THE LAWYER'S NOTICE ISSUED BY MRS.PARVATHY B.NAIR DATED 31.08.2019** **EXHIBIT R1(j) TRUE COPY OF THE REPLY GIVEN BY THE DEFENDANT DATED 06.09.2019** **EXHIBIT R1(k) TRUE COPY OF THE LETTER ISSUED BY THE DEFENDANT TO MRS.PARVATHY B.NAIR DATED 06.09.2019** **EXHIBIT R1(l) TRUE COPY OF THE LETTER ISSUED BY MRS.PARVATHY B.NAIR TO THE DEFENDANT DATED 20.09.2019 WITH POSTAL COVER** **EXHIBIT R1(m) TRUE COPY OF THE UNSIGNED LETTER ISSUED BY MR.P.G.ANILKUMAR TO THE DEFENDANT DATED 26.09.2019 WITH POSTAL COVER** OP(C).No.1082 OF 2020 9 **EXHIBIT R1(n) TRUE COPY OF THE REPLY GIVEN BY THE STATE PUBLIC INFORMATION OFFICER, ELAMAKKARA POLICE STATION TO THE MANAGER OF THE DEFENDANT DATED 18.10.2019 WITH ATTACHMENTS** **EXHIBIT R1(o) TRUE COPY OF THE JUDGMENT DATED 06.12.2019 IN FAO 174/2019 PASSED BY THIS HON'BLE COURT** **EXHIBIT R1(p) TRUE COPY OF THE PLAINT IN OS 276/2019 DATED 23.10.2019 BUT FILED ONLY ON OR ABOUT 26.11.2019** ## **//TRUE COPY//** **P.A. TO JUDGE**