M/S Chand V Foods and Others v Leela John and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 13[TH] DAY OF MAY 2022 / 23RD VAISAKHA, 1944** ## **OP(C) NO. 1192 OF 2021** **AGAINST THE ORDER/JUDGMENT IN OS 3/2021 OF PRINCIPAL SUB COURT, THRISSUR** ## **PETITIONER/S:** 1 M/S. CHAND V FOODS, C/O. CHAND V REGENCY, KAIPAMANGALAM, MOONUPPEDIKA, TRICHUR DISTRICT 680681, REP. BY MANAGING PARTNER ARUN GOSH (AT PRESENT PARTNERSHIP FIRM IS NOT FUNCTIONING. 2 ARUN GOSH, AGED 42 YEARS S/O. ARAVINDAKSHAN , MOOTHEDATH HOUSE, NADATHARA POST. VILLAGE, TRICHUR 680 751. 3 BAIJU CHANDRAN AGED 51 YEARS S/O. NELLIKKATHARA CHANDRAN, KIPAMANGALAM POST AND VILLAGE, TRICHUR 680 681. BY ADVS. T.M.CHANDRAN S.SUJITH ## **RESPONDENT/S:** 1 LEELA JOHN, AGED 71 YEARS W/O. JOHN, FLAT NO. 5F, CIDBI CEDER THRISSUR, CHEMBUKKAVU VILLAGE, NELLIKKUNNU POST, TRISSUR 680 005. 2 JOE PORINJU JOHN, AGED 52 YEARS S/O. JOHN, CIDBI CEDER THRISSUR, CHEMBUKAVU VILLAGE, NELLIKUNNU POST, TRISSUR 680 005. 3 JEENA GEORGE JACOB, AGED 49 YEARS D/O. JOHN , CIDBI CEDER THRISSUR, CHEMBUKKAVU VILLAGE, NELLIKUNNU POST, TRISSUR 680 005. BY ADV S.LEKHA **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 15.12.2021,** **THE COURT ON 13.05.2022 DELIVERED THE FOLLOWING:** O.P.(C) No.1192 of 2021 -2- ## **JUDGMENT** Dated this the 13[th] day of May, 2022 The petitioners are the plaintiffs in O.S.No.3 of 2021 on the files of the Principal Sub Court, Thrissur. The suit is filed for recovery of a sum of Rs.31,12,061/- from the defendants and also for damages and other losses sustained by the plaintiffs. Along with the suit, the petitioners filed I.A.No.2 of 2021 under Order 38 Rule 5 seeking attachment before judgment of the amount claimed in the suit. By the impugned order, the trial court dismissed the interlocutory application. Hence, this original petition. 2. The averments in the suit and the interlocutory application are as follows; The first plaintiff partnership firm entered into a rental agreement with respect to plaint A schedule building on 17.08.2017. The plaintiffs commenced hotel business in A schedule premises ## O.P.(C) No.1192 of 2021 -3- on 01.11.2017. While so, one of the partners of the first plaintiff died and the third plaintiff was inducted to the partnership on 21.02.2018. Thereafter, a supplementary agreement was entered into between the parties on 06.08.2018, reiterating the terms and conditions in the original agreement. 3. According to the plaintiffs, in the early months of 2020, the defendants requested them to vacate the rented premises as they intended to sell the property. In view of their good relation with the defendants, the plaintiffs agreed to vacate the premises. The defendants also insisted that the interior works and B schedule movable items of the plaintiffs should not be removed from the rented premises, so that prospective purchasers could be wooed into paying a good price. In turn, the defendants agreed to compensate the plaintiffs by paying an amount of Rs.25 lakhs towards cost of the interior works O.P.(C) No.1192 of 2021 -4- and price of B schedule items. Other than the sum of Rs.25 lakhs, the defendants also agreed to refund the advance amount of Rs.5 lakhs and an amount of Rs.1,01,756/- paid for obtaining electric connection for the building. Believing the words of the defendants, the plaintiffs closed down the business on 15.03.2020. According to the plaintiffs, they had sent e-mail to the defendants on 04.04.2020, requesting to cancel the rent agreement and refund the amounts due and handed over the keys of the building. Contrary to their assurance, the defendants failed to pay the amount of Rs.31,01,756/- agreed upon and clandestinely attempted to sell the building. Hence, the suit for recovery and the application for attachment before judgment. 4. The defendants filed objection to the application for attachment before judgment, terming the plaintiffs' averments to be false. It was contended that the defendants had never ## O.P.(C) No.1192 of 2021 -5- agreed to pay Rs.25 lakhs as compensation for cost of the interior works and price of movables. The defendants also refuted the contention that the plaintiffs had vacated the premises on 04.04.2020 and handed over the keys to the plaintiffs. The allegation that the defendants had contacted various persons for the purpose of sale of the scheduled property, was also refuted. According to the defendants, the plaintiffs had sublet the entire premises and had defaulted in payment of rent and the attempt through the suit was to continue illegal possession and occupation of the premises. 5. After considering the rival contentions in detail, the trial court dismissed the application for attachment, finding the plaintiffs to have failed in producing documents evidencing the alleged undertaking of the defendants to pay Rs.25 lakhs towards compensation for the interior works and price of O.P.(C) No.1192 of 2021 -6- movables. The trial court also found inconsistencies in the claim of the plaintiffs, inasmuch as the defendants had, in their written statement, stated that an amount of Rs.80 lakhs was spent for interior works, and at the same time, was prepared to accept Rs.25 lakhs as compensation for retaining the works in the building. The court also refused to accept the contention of the plaintiffs that they had vacated the premises and handed over the key of the building to the defendants on 04.04.2020, accepting the version of the defendants that the State was under lockdown during the aforementioned period, making it impossible for the public to step out of their houses without obtaining prior permission. 6. Heard Adv.T.M.Chandran for the petitioners and Adv.Lekha S.Menon for the respondents. 7. Learned Counsel for the defendants ## O.P.(C) No.1192 of 2021 -7- raised a preliminary objection regarding maintainability of the original petition, pointing out that the proper remedy was to file revision under Section 115 CPC. Learned Counsel for the petitioners contended that even if availability of remedy under Section 115 CPC is accepted for the sake of argument, that does not curtail this Court's power of superintendence under Article 227 of the Constitution of India. 8. The question of maintainability having been raised, that has to be dealt with before proceeding to consider the matter on merits. The interlocutory application, upon which the impugned order is passed, was filed under Order 38 Rule 5. As per Order 43 Rule 1(q), an order under Rule 2, Rule 3 or Rule 6 of Order 38 is appealable. Order 38 Rule 5 deals with the court's power to call upon the defendants to furnish security for production of property or to show cause why he should not furnish security. O.P.(C) No.1192 of 2021 -8- Rule 6 of Order 38 provides for attachment when the defendants fails to show cause or furnish security. The question whether an order dismissing an application under Order 38 Rule 5 could be treated as an order Order 38 Rule 6 and hence appealable was considered by this Court in _**Mathukutty Mathew v. Sunny**_ **[** _**2015 (1) KLT 620]**_ **.** Therein, reliance was placed on the following portion of the judgment in _**Pareed Master v. Antony [1987 (2) KLT 649]**_ to hold the appeal to be not maintainable. 4. …... _If an order is passed under clause (1)(b) of Order 38 Rule 5, directing the defendant to furnish security within a time fixed by the court, or to appear and show cause why he should not furnish security and thereafter an order was passed by the Court, then only the same could be said to be an order passed under Order 38 Rule 6. From a reading of - sub rule (2) of Order 38 Rule 6 it is clear that it is not applicable in a case where there was no conditional attachment of the whole or portion of the property, or in other words, - sub rule (2) of Order 38 Rule 6 is not intended_ O.P.(C) No.1192 of 2021 -9- _to cover cases in which the defendant successfully shows cause against attachment before judgment in which no conditional attachment under Rule 5(3) had been made. Order 38 Rule 6 contemplates cases where conditional attachment before judgment was ordered and later withdrawn when the defendant showed cause. Therefore, the impugned order squarely comes within the order passed under Order 38 Rule 5, which is not made appealable under Order 43 Rule 1(q)._ _(emphasis supplied).”_ It is hence clear that Ext.P9 order is not appealable. Then the question is whether the impugned order is revisable. Section 115 provides for revision to the High Court against orders in which no appeal lies. Explanation to Section 115 clarifies that the expression “any case which has been decided” includes any order made, or any order deciding an issue in the course of a suit or other proceeding. In _**Devassy and another v. Abdulla Koya Haji and others [2010 (2) KHC 281]**_ , the final order by which a suit or other O.P.(C) No.1192 of 2021 -10- proceeding is terminated is held to be amenable to revision by the High Court. The position was further clarified in _**Muthuswamy v. Noorudheen**_ ## _**[2013 (1) KLT 257]**_ as under; _“9. The meaning of the word “order” used in the proviso is “interim non-appealable order”. That word is used thrice in the proviso, and it carries the same meaning. In respect of such an order, an exception has been engrafted in the proviso itself. Interim nonappealable orders coming within that exception would be revisable by the High Court. What was intended by the amendments introduced in the years 1976 and 1999 was to impose an overall restriction on the scope of application for revision against interlocutory orders in addition to the restriction already contained in S.115. It was not the legislative intent to take away the remedy of revision against the final orders passed in appeal under S.104 or O.XLIII R.1 of the Code. This legal position is not altered by the proviso. In other words, the revisional jurisdiction under S.115 of the Code is available against the orders deciding finally the suit or other proceedings, where no appeal is provided and where the effect of order in revision would finally dispose of the suit or other proceedings. The revisional jurisdiction will not be exercised in respect of other orders_ O.P.(C) No.1192 of 2021 -11- _‘deciding any case’ in the course of suit or other proceedings, though there may be an error, defect, irregularity or illegality in exercise of jurisdiction, where allowing revision would not finally dispose of the suit or other proceedings.”_ As the order dismissing an application for attachment before judgment has the impact of terminating that proceedings, the order is amenable to revision under Section 115. 7. Learned Counsel for the petitioners relied on the decision in _**Surya Dev Rai v. Ram Chander Rai and others [2003 (6) SCC 675]**_ to contend that even interlocutory orders of Subordinate Courts are amenable to the supervisory jurisdiction under Article 227, when the order contains a manifest error warranting immediate correction. Even accepting the contention of the learned Counsel for the petitioners, I do not find any manifest error in the impugned order warranting exercise of ## O.P.(C) No.1192 of 2021 -12- supervisory jurisdiction. The trial court was right in finding that, other than the averment in the written statement and the interlocutory application that the defendants had agreed to pay an amount of Rs.25 lakhs as compensation for the interior works and price of movables, absolutely no material is produced to substantiate the averment. On the other hand, the documents on record, namely, Ext.R1(b) supplementary agreement dated 06.08.2018, entered into after the interior works were done, and Ext.P1 e-mail dated 04.04.2020, requesting to cancel the rent agreement, makes no mention of the alleged undertaking by the defendants to pay Rs.25 lakhs. As has been repeatedly held by the Apex Court and this Court, including the judgment in _**Skoda Auto**_ _**India Pvt.Ltd v. St.Antony's Trading Company [2018 (1) KLT 558]**_ , attachment before judgment is a drastic action in law and is not to be exercised mechanically in the absence of precise O.P.(C) No.1192 of 2021 -13- averments and _prima facie_ evidence. Such ingredients being absent, the court below was justified in dismissing the application. Needless to say that the impugned order shall not prejudice the petitioners from letting in evidence, if any available, to substantiate their claim for recovery made in the suit. For the aforementioned reasons, the original petition is dismissed. Sd/- **V.G.ARUN JUDGE** Scl/ O.P.(C) No.1192 of 2021 -14- ## **APPENDIX OF OP(C) 1192/2021** PETITIONER EXHIBITS |Exhibit P1|TRUE COPY E MAIL DATED 04-04-2020 SENT| |---|---| ||BY THE PETITIONERS TO THE DEFENDANTS.| |Exhibit P2|TRUE COPY LEGAL NOTICE DATED 01-12-| ||2020 SENT BY THE COUNSEL FOR| ||DEFENDANTS TO THE PLAINTIFFS.| |Exhibit P3|TRUE COPY OF REPLY NOTICE SENT BY THE| ||COUNSEL FOR THE PLAINTIFFS TO THE| ||DEFENDANTS.| |Exhibit P4|TRUE COPY OF PLAINT O.S 3/2021 FILED| ||BEFORE THE 15 PRINCIPAL SUB COURT| ||THRISSUR BY THE PLAINTIFFS .| |Exhibit P5|TRUE COPY OF I.A.2/2021 FILED BY THE| ||PLAINTIFFS UNDER ORDER 38 RULE 5 C.P.C| ||BEFORE PRL .SUB COURT, THRISSUR .| |Exhibit P6|TRUE COPY OF CR. STATEMENT DATED| ||JANUARY 2021 FILED BY THE DEFENDANTS.| |Exhibit P7|TRUE COPY OF COMMISSION REPORT DATED| ||14-01-2020 (NOTED INSTEAD OF 2021)| ||FILED BY THE COMMISSIONER .| |Exhibit P8|TRUE COPY OF COMMISSION REPORT DATED| ||30-03-2021 FILED BY THE COMMISSIONER.| |Exhibit P9|TRUE COPY OF ORDER DATED 08-04-2021 IN| ||I.A.2/2021 IN O.S.3/2021 PASSED BY THE| ||PRL. SUB COURT,THRISSUR.| |RESPONDENT EXHIBITS|| |Exhibit R1 A|TRUE COPY OF THE AGREEMENT ENTERED| ||BETWEEN THE RESPONDENT AS LANDLORD AND| ||THE IST PETITIONER AND ONE MR. BINOY| ||AS TENANT.| |Exhibit R1 (B)|TRUE COPY OF THE SUPPLEMENTARY RENT| ||AGREEMENT ENTERED BETWEEN THE| ||RESPONDENT S LAND LORD AND THE IST| ||PETITIONER AND ONE MR. BAIJU N.C. AS| ||TENANT.| |Exhibit R1 (C)|TRUE COPY OF THE STATEMENT FILED BY| ||THE RESPONDENTS /DEFEDANTS IN O.S.| ||3/2021 BEFORE THE HONBLE SUB COURT,| ||THRISSUR.| |Exhibit R1 (D)|TRUE COPY OF THE OBJECTION FILED BY| O.P.(C) No.1192 of 2021 -15- THE RESPONDENTS /DEFENDANTS IN I.A. 2/2021 IN O.S. 3/2021 BEFORE THE HON. BLE SUB COURT, THRISSUR.