High Court of KeralaSingle Judge2022-11-18Writ petition disposed of with directions: regi...

M/S Carnival Facility Service Private Limited v State of Kerala & Ors.

Case / Petition Number:WP(C) No. 29645 of 2022

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: T.R.Ravi
Judgment Date: 2022-11-18
Court Decision / Holding: Writ petition disposed of directing the 2nd respondent to effect registration of Ext.P3 lease deed when presented and in order, while clarifying that there is no interference with Ext.P2 attachment order and that the 3rd respondent’s rights under attachment remain protected; the petitioner should pursue remedies against the attachment order in the appropriate forum.
Final Disposition: Writ petition disposed of with directions: registration of Ext.P3 lease deed to be effected if otherwise in order; Ext.P2 attachment order remains unaffected; petitioner to pursue remedies for attachment order as appropriate; rights of 3rd respondent under attachment are preserved by the order.

Parties to the Case

Appellants / Petitioners

M/S Carnival Facility Service Private Limited

Respondents

State of Kerala represented by the Secretary to Government, Department of Revenue, Thiruvananthapuram
The Registrar Sub Registrar Office, Thrippunithura, Civil Station Building, Thrippunithura
Addl.R3: Heera Life Style (P) Limited
Addl.R4: Life Style International Private Ltd

Legal Representation & Advocates

Counsels for Petitioners

• Millu Dandapani

Counsels for Respondents

• Smt. V. Deepa
• Govt Pleader Sri S. Sreekumar (Sr.)
• Sri Martin Jose P S
• Sri P. Prijith
• Sri Thomas P. Kuruvilla
• Sri R. Githesh
• Sri Ajay Ben Jose
• Sri Manjunath Menon
• Sri Sachin Jacob Ambat
• Sri Anna Linda V.J
• Sri Harikrishnan S

Case Synopsis & Summary

This writ petition challenges a lower court decision and seeks registration of Ext.P3, a lease deed, and a declaration that Ext.P2 order of attachment will not bar the petitioner from leasing the property to third parties. The petitioner, Carnival Facility Service Private Limited, contends that registration of the lease is a mere conveyance of possession and does not involve transfer of ownership; it argues that, as long as the attachment remains, the interests of the 3rd respondent are protected and that the lease will not affect those rights. The 2nd respondent allegedly refused to register Ext.P3 due to the attachment, and the petitioner had already approached the Commercial Court for modification of the attachment order, with an application pending (IA 1/2022 in CMA 533/2022). The respondent 3rd party asserts that registering a lease could create third-party rights and undermine the attachment. The judge, relying on Section 64 CPC (1908) and its interpretation by prior Full Bench decisions, held that registration of the lease would not prejudice the 3rd respondent’s rights so long as the attachment remains; Section 64(2) excludes post-attachment contracts registered before attachment from the same rule, and thus does not apply here. Citing Chacko Mathew v. Ayyappankutty, Gangayya v. Venkataramayya, and K.N.Narayana Iyer v. Commissioner of Income-tax, the court concluded the petitioner’s relief could be granted without disturbing attachment rights. The writ petition is disposed of directing registration of Ext.P3 when presented and in order, while preserving the attachment order’s effects on Ext.P2, and granting the petitioner a right to pursue remedies for the attachment order.

Provisions of Law Cited

Section 64 of the Code of Civil Procedure, 1908Section 64(2) CPCTravancore Ezhava Act, Section 21Article 226 of the Constitution of India

Legal Doctrines & Maxims

The phrase 'shall be void against all claims enforceable' in Section 64 CPC; effect of attachment on private transfers
Void vs. voidable alienations in the context of attachments (Chacko Mathew v. Ayyappankutty)
Protection of third-party interests under attachment and limitations on post-attachment contracts registered after attachment (Section 64(2))

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner submits that Ext.P3 lease registration should be permitted despite the attachment, as it does not transfer ownership and leases merely use of the property. It is argued that the attachment will continue to protect the 3rd respondent’s interests and that the 2nd relief sought (extension of relief via Article 226) is already pursued in the lower court; registration would not negate the attachment. The petitioner emphasizes that Registration of Ext.P3 will be subject to compliance with legal formalities and does not extinguish the attachment under Ext.P2.

Contentions of Respondents

The respondents contend that registration cannot be granted while the attachment order exists and that the petitioner cannot simultaneously seek relief from this Court under Article 226. They note that an application for modifying the attachment (CMA/ARB 533/2022) is pending in the Commercial Court, indicating potential alteration of attachment terms. They caution that creation of a lease could generate third-party rights contrary to the attachment, potentially prejudicing the 3rd respondent’s interests. Government Pleader maintains that Ext.P1 has not been registered and that the refusal to register is proper in view of the attachment.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Chacko Mathew v. Ayyappankutty	AIR 1962 164	Positive	Full Bench held that even though the alienation might be described as void, it can be voidable, emphasizing protection of rights under attachment; used to support the premise that attachment rights prevail and lease registration does not automatically defeat such rights.
Gangayya v. Venkataramayya	AIR 1923 Madras 230	Positive	Referenced by the Full Bench in discussions on attachment effects and void/voidable transfers, reinforcing the protective effect of attachment on third-party interests.
K.N.Narayana Iyer v. Commissioner of Income-tax	[(1993) 78 Company Cases 156]	Positive	Cited as authority on protecting third-party interests under attachment and related principles.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against M/S Carnival Facility Service Private Limited v State of Kerala & Ors. and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **FRIDAY, THE 18[TH] DAY OF NOVEMBER 2022 / 27TH KARTHIKA, 1944** **WP(C) NO. 29645 OF 2022** ## **PETITIONER/PETITIONER:** **M/S.CARNIVAL FACILITY SERVICE PRIVATE LIMITED HAVING ITS REGISTERED OFFICE AT FM-18, MANASAROVAR COMPLEX, 7 NO. STOP, SHIVAJI NAGAR, BHOPAL, MADHYA PRADESH, PIN- 462 016** **REPRESENTED BY ITS AUTHORISED SIGNATORY** **MR. SONY RAVINDRANATH, AGED 38 YEARS, S/O K.P RAVIDRANATH, RESIDING AT SURABHI HOUSE, VENGOOR, KIDANGOOR P.O, ANGAMALY, ERNAKULAM, PIN – 683 591** ## **BY ADV SRI MILLU DANDAPANI** ## **RESPONDENTS/RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT DEPARTMENT OF REVENUE, THIRUVANTHAPURAM, PIN – 695 001 2 THE REGISTRAR SUB REGISTRAR OFFICE, THRIPPUNITHURA, CIVIL STATION BUILDING, THRIPPUNITHURA, PIN – 682 301 ADDL.R3 & R4 IMPLEADED 3 ADDL.R3: M/S.HEERA LIFE STYLE (P) LIMITED HAVING ITS REGISTERED OFFICE AT HEERA PARK, M.P APPAN ROAD, VAZUTHACAD, VAZHUTHACAD P.O., PIN 695 014 THYCAUD VILLAGE , THIRUVANTHAPURAM TALUK. THIRUVANTHAPURAM** **WP(C) NO. 29645 OF 2022** **2** **4 ADDL.R4: M/S. LIFE STYLE INTERNATIONAL PRIVATE LTD HAVING ITS REGISTERED OFFICE AT MAX RETAIL DIVISION, 77 DEGREE TOWN CENTRE, BUILDING NO 3, WEST WING, OFF HAL AIRPORT ROAD , YEMLUR P.O , BANGLORE 560 037** **ADDL.R3 & R4 ARE IMPLEADED AS PER ORDER DATED 22.09.2022 IN IA 1/2022 IN WPC NO. 29645/2022.** **BY ADVS. SMT.V.DEEPA, GOVT.PLEADER SRI S.SREEKUMAR (SR.)(S-571) SRI MARTIN JOSE P SRI P.PRIJITH(K/233/2005) SRI THOMAS P.KURUVILLA(K/420-B/2005) SRI R.GITHESH(K/630/2002) SRI AJAY BEN JOSE(K/729/2012) SRI MANJUNATH MENON(K/000474/2015) SRI SACHIN JACOB AMBAT(K/734/2016) SRI ANNA LINDA V.J(K/1201/2020) SRI HARIKRISHNAN S.(K/497/2019)** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON** **18.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 29645 OF 2022** **3** ## **T.R.RAVI, J.** ## **---------------------------------------WP (C) No.29645 of 2022 ------------------------------------------Dated this the 18[th] day of November, 2022** ## **JUDGMENT** The prayer in this writ petition is for a direction to the 2[nd] respondent to effect registration of Ext.P3 lease deed and for a declaration that Ext.P2 order of attachment will not stand in the way of the petitioner letting out the property to third parties. 2. The additional 3[rd] respondent has filed a counter affidavit. It is pointed out that the order of attachment has not been challenged and the condition has also not been complied with. It is also pointed out that the jurisdiction of the Court was challenged, and that contention was rejected. The counter affidavit also points out that an application had been filed before the Commercial Court for advancing the application and seeking modification of the attachment order permitting the petitioner to lease out the property. The said application was posted on 15.09.2022 and is still pending. It is hence submitted that for the 2[nd] relief in the writ petition, the petitioner has already approached the Court below and the petitioner cannot be **WP(C) NO. 29645 OF 2022** **4** permitted to simultaneously seek the same remedy from this Court under Article 226 of the Constitution of India. The counsel for the the petitioner submits that the petitioner had approached the 2[nd] respondent for registration of Ext.P3 lease deed which has been refused for the reason that there is an attachment. The contention is that there is no transfer of ownership involved and all that is being done is make use of the property, which right which cannot be denied by the 3[rd] respondent. It is submitted that the interests of the 3[rd] respondent are already protected by the order of attachment which will not in any way be affected by leasing out the property. The counsel for the 3[rd] respondent says that the apprehension is that third party rights will be created on the lease being granted. The Government Pleader on instruction submits that the petitioner has not yet presented the document for registration. 3. Having considered the contentions from either side, I am of the opinion that registration of the lease deed will not by itself affect the rights of the 3[rd] respondent. As long as the attachment remains, the interests of the 3[rd] respondent is **WP(C) NO. 29645 OF 2022** **5** protected. I am fortified in taking the above view, by the provision contained in Section 64 of the Code of Civil Procedure, 1908, which says that where an attachment has been made, any private transfer of delivery of the property attached or of any interest therein and any payment to the judgment debtor of any debt, dividend or other moneys contrary to such attachment shall be void as against all claims enforceable under the attachment. As such, the lease that may be created by the petitioner will not in any manner affect the rights of the 3[rd] respondent based on the attachment. Sub-section (2) of Section 64 of the Code of Civil Procedure says that the Section did not apply to private transfer or delivery of the property attached or of any interest therein made in pursuance of any contract for such transfer or delivery entered into and registered before the attachment. Since this is a case where the registration is sought after the attachment, the said provision will not apply in the case of the petitioner. The words “ **shall be void against all claims enforceable** ” in Section 64 and similar words contained in other enactments have been considered by the courts on several occasions. A Full Bench of **WP(C) NO. 29645 OF 2022** **6** ## this Court in **Chacko Mathew v. Ayyappankutty [AIR 1962** **164]** , while considering the effect of an alienation of a Tharvad property not in conformity with the conditions laid down in Section 21 of the Travancore Ezhava Act, took the view that even though the word used is that the alienation is void, it only means it is voidable at the instance of the Tharvad. While answering the question, the Full Bench had also referred to the provisions contained in Section 64 of the Code of Civil Procedure and the judgment of the Madras High Court in **Gangayya v. Venkataramayya [AIR 1923 Madras 230]** . [See also **K.N.Narayana Iyer v. Commissioner of Income-tax [(1993) 78 Company Cases 156)]** rendered by a Division Bench of this Court]. As such, the rights of the 3[rd] respondent are well protected even if a lease is executed by the petitioner. 4. In such circumstances, the writ petition is disposed of directing the 2[nd] respondent to effect registration of Ext.P3 lease deed when the same is presented and if it is otherwise in order. It is made clear that this Court has not in anyway interfered with Ext.P2 order of attachment issued on 22.04.2022 by the District Court, Ernakulam and it is for the petitioner to work out **WP(C) NO. 29645 OF 2022** **7** his remedies against the said attachment order. It is also made clear that none of the rights of the 3[rd] respondent based on the order of attachment will in anyway be affected by the registration of the lease deed. ## **Sd/-** **T.R.RAVI** **JUDGE** sn **WP(C) NO. 29645 OF 2022** **8** ## **APPENDIX OF WP(C) 29645/2022** ## **PETITIONER'S EXHIBITS** **Exhibit P1 THE TRUE COPY OF THE SALE DEED EXECUTED BY THE PETITIONER AND THE COMPANY NAMELY M/S.HEERA LIFE STYLE (P) LIMITED BEFORE THE THRIPPUNITHURA SRO DATED 2/03/2018 Exhibit P2 THE TRUE COPY OF THE ORDER OF ATTACHMENT PASSED IN IA 3/2022 IN CMA (ARB) NO 533/2022 DATED 20/04/2022 Exhibit P3 THE TRUE COPY OF THE LEASE DEED EXECUTED BETWEEN THE PETITIONER AND THE COMPANY NAMELY M/S LIFESTYLE INTERNATIONAL PRIVATE LTD DATED 8/07/2022** ## **RESPONDENT'S EXHIBITS** **EXHIBIT R 3(A) TRUE COPY OF THE AGREEMENT DATED 02-03-2018 EXHIBIT R 3(B) TRUE COPY OF THE APPLICATION DATED 19-02-2016 SUBMITTED BEFORE THE SECRETARY, THRIPUNITHURA MUNICIPALITY** **EXHIBIT R 3(C) TRUE COPY OF JUDGMENT DATED 30.06.2020 IN WPC.NO.10236 OF 2020 EXHIBIT R 3(D) TRUE COPY OF THE I.A. NO. 5 OF 2022 IN C.M.A ARBITRATION NO. 533 OF 2022 FILED BY THE PETITIONER BEFORE THE SUB COURT, ERNAKULAM EXHIBIT R 3(E) TRUE COPY OF THE A-DIARY PROCEEDINGS ON 02-09-2022** **//TRUE COPY// PA TO JUDGE**