REGHUNATH S/O.THANKAPPAN NAIR, PRASANNA W/O.REGHUNATH, PRATHEESH KRISHNA S/O.KRISHNANKUTTY MENON v JEEVADHARA INSTITUTE OF NUERO DEVELOPMENT AND RESEARCH, PANANGAD, ERNAKULAM (and 2nd respondent Jeevadhara Institute of Nuero Development and Researach)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY, THE 16TH DAY OF SEPTEMBER 2020 / 25TH BHADRA, 1942** ## **OP(C).No.1000 OF 2020** **AGAINST THE ORDER IN I.A NO.6/2020 IN O.S NO.38/2014 DATED 1506-2020 OF ADDITIONAL SUB COURT,NORTH PARAVUR** ## **PETITIONERS:** **1 REGHUNATH S/O.THANKAPPAN NAIR, AIKKARA HOUSE, NADUVATTAM KARA, MANJAPRA VILLAGE, ALUVA TALUK, PIN-683581 2 PRASANNA W/O.REGHUNATH, AIKKARA HOUSE, NADUVATTAM KARA, MANJAPRA VILLAGE, ALUVA TALUK, PIN-683581 3 PRATHEESH KRISHNA S/O.KRISHNANKUTTY MENON, KOMBANAL HOUSE, KANAYANNUR KARA, KANAYANNUR VILLAGE, PIN-683581 REPRESENTED BY POWER OF ATTORNEY 2ND PETITIONER PRASANNA.** **BY ADVS. SRI.DINESH R.SHENOY SRI.EBIN MATHEW SRI.P.ROHIT PREMANANDAN SHENOY** ## **RESPONDENTS:** **1 JEEVADHARA INSTITUTE OF NUERO DEVELOPMENT AND RESEARCH, PANANGAD, ERNAKULAM, PIN-682506, REPRESENTED BY ITS MANAGING TRUSTEE, DR.SR.MARY ESSY. 2 JEEVADHARA INSTITUTE OF NUERO DEVELOPMENT AND RESEARACH PANANGAD, ERNAKULAM, REPRESENTED BY ITS TRUSTEE, VIJO PETER, S/O.PETER, KODUVELIL HOUSE, EZHUPPUNNA VILLAGE, CHERTHALA TALUK, PIN-688537** **R1 BY ADV. SRI.M.P.RAMNATH R1 BY ADV. SRI.P.RAJESH (KOTTAKKAL) R1 BY ADV. SEI.M.VARGHESE VARGHESE R1 BY ADV. SRI.JIMMI JOSE R1 BY ADV. SRI.SAJIV.C.K.** **OP(C).No.1000 OF 2020** **2** **R1 BY ADV. SMT.S.SANDHYA R1 BY ADV. SRI.BEPIN PAUL R1 BY ADV. SRI.SHALU VARGHESE R1 BY ADV. SRI.S.DEEPAK R1 BY ADV. SRI.ANTONY THARIAN** **THIS O.P (CIVIL) HAVING BEEN FINALLY HEARD ON 09-09-2020, THE COURT ON 16-09-2020 DELIVERED THE FOLLOWING:** **OP(C).No.1000 OF 2020** **3** ## **R. NARAYANA PISHARADI, J** ## **---------------------------------------------------O.P (C) No. 1000 of 2020** ## **-----------------------------------------------------** Dated this the 16[th] day of September, 2020 ## **JUDGMENT** The petitioners are the defendants and the respondents are the plaintiffs in the suit O.S.No.38/2014 on the file of the Additional Sub Court, North Paravur. 2. The parties shall be hereinafter referred to according to their status in the suit. The first plaintiff is the institution Jivadhara Institute of Neuro Development and Research which is run by a Trust by name 'Jivadhara Charitable Trust' (hereinafter referred to as 'the Trust'). 3. The suit is instituted by the plaintiffs for granting a decree for realization of an amount of Rs.1,65,70,000/- from the defendants. The plaintiffs have also sought decree of injunction in respect of the plaint B and C schedule properties. 4. The material averments in the plaint can be briefly stated as follows: On 09.07.2012, an agreement was executed between the Trust and the defendants for sale of the plaint A schedule properties by the defendants in favour of the Trust. Out of the plaint A schedule **OP(C).No.1000 OF 2020** **4** properties, 108.72 cents of land belonged to a third party. The defendants had made the plaintiff to believe that they had entered into an agreement with that third party to buy that property. The total sale consideration payable by the Trust for the plaint A schedule properties was Rs.6,00,50,000/-. On the date of the agreement, the plaintiffs had paid an amount of Rs.75,00,000/- as advance towards the sale consideration. As per the agreement, the Trust had to pay one crore and fifty lakhs rupees to the defendants within a period of sixty days from the date of the agreement and then the defendants were liable to sell properties equal to the value of that amount to the Trust. The defendants had received a total amount of Rs.2,25,70,000/- from the Trust on different dates, including Rs.75,00,000/- paid as advance. After the agreement, a building in the properties was given on rent to the Trust. This building is described in the plaint C schedule. The defendants sold 13 cents of property, which is described in the plaint B schedule to the Trust for a consideration of one crore rupees. In order to complete the construction of the building in that property Rs.40,00,000/- is required to be spent by the plaintiffs. There is no right of way provided to this property as agreed upon by the defendants. The defendants have committed breach of the contract. Hence, the plaintiffs are entitled to get a decree for realisation of an **OP(C).No.1000 OF 2020** **5** amount of Rs.1,65,70,000/- from the defendants (2,25,70,000 + 40,00,000 – 1,00,00,000). 5. Along with the suit, the plaintiffs filed an application as I.A.No.686/2014 seeking attachment before judgment of the plaint A schedule properties. The aforesaid application was allowed by the trial court and six acres of properties covered by the sale agreement were attached before judgment. 6. In March, 2020, the defendants filed an application as I.A.No.6/2020 before the trial court praying that the attachment over some items of properties may be withdrawn. The first plaintiff filed counter affidavit in that application opposing the prayer made therein. 7. As per Ext.P13 order dated 15.06.2020, the learned Additional Sub Judge dismissed the aforesaid application filed by the defendants. 8. The defendants have filed this original petition under Article 227 of the Constitution of India challenging the legality and propriety of Ext.P13 order passed by the court below. 9. Heard the learned counsel for the petitioners and also the first respondent. 10. The defendants have admitted execution of the agreement dated 09.07.2012 for the sale of the plaint A schedule properties in **OP(C).No.1000 OF 2020** **6** favour of the Trust. But the plea of the defendants is that the total amount of advance paid by the Trust was only Rs.1,25,00,000/- and not Rs.2,25,70,000/- as alleged by the plaintiffs. 11. It is also the plea of the defendants that the sale consideration of the 13 cents of property sold in favour of the Trust is not one crore rupees but it is one crore and forty five lakhs rupees. 12. Ext.P12 is the copy of the sale deed executed in favour of the Trust in respect of the aforesaid 13 cents of property. The sale consideration shown in Ext.P12 document is only Rs.10,40,000/-. Then, it is not explained how the parties could contend before a court of law that the actual sale consideration was one crore rupees or one crore and forty five lakhs rupees. However, this is not a matter requires discussion here because the defendants have sought withdrawal of attachment over some of the properties on the basis that the remaining properties are sufficient to realise the plaint claim of Rs.1,65,70,000/-. 13. In the affidavit filed in support of the application I.A.No. 6/2020, it is stated by the first defendant that it is not necessary to retain the six acres of properties under attachment for the plaint claim of Rs.1,65,00,000/-. It is stated that 311.72 cents of properties shown in plan No.1 produced along with the application are sufficient to **OP(C).No.1000 OF 2020** **7** satisfy the plaint claim and therefore, the attachment over the properties shown in plan No.2 may be withdrawn. This is the only basis for the prayer made by the defendants for withdrawing the attachment over a portion of the properties. 14. The application I.A.No.6/2020 is filed by the defendants under Order XXXVIII Rule 5(2) of the Code of Civil Procedure, 1908 (for short 'the Code'). Order XXXVIII Rule 5(2) of the Code provides that, the plaintiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof. No application for withdrawal of attachment over a portion of the properties already attached, on the ground that the attachment of the entire properties is not necessary to satisfy the plaint claim, is contemplated under this provision. 15. True, quoting a wrong provision of law is not a sufficient ground to dismiss an application filed in the court. What is to be considered is the prayer made in the application and the power of the court to allow the prayer on the basis of the matters pleaded by the parties. 16. The prayer made in the application I.A.No.6/2020 is for withdrawing the attachment over certain items of properties on the ground that the remaining properties are sufficient to satisfy the plaint **OP(C).No.1000 OF 2020** **8** claim. 17. Order XXXVIII of the Code contains two provisions for withdrawal of attachment at the instance of the defendant. One provision is Rule 6(2) and the other provision is Rule 9 of Order XXXVIII of the Code. 18. Rule 6(2) of Order XXXVIII of the Code provides for withdrawal of attachment when the defendant shows sufficient cause for not furnishing security or when he furnishes the required security. Withdrawal of attachment contemplated under this provision is the conditional attachment, if any, already ordered by the court under Rule 5(3) of Order XXXVIII of the Code. The defendant can, at this stage, contend before the court that attachment of the entire properties, if already effected conditionally or proposed to be effected finally, is not necessary to satisfy the plaint claim and only a portion of the properties is sufficient to satisfy the plaint claim. But, when the defendants in this case filed the application I.A.No.6/2020, the stage contemplated under Rule 6(2) was over since the attachment effected had become final by then. It is to be noted that the attachment was effected in the year 2014 but the application for withdrawal of attachment was made only in March, 2020. **OP(C).No.1000 OF 2020** **9** 19. Order XXXVIII Rule 9 of the Code provides that, where an order is made for attachment before judgment, the Court shall order the attachment to be withdrawn when the defendant furnishes the security required, together with security for the costs of the attachment. The averments in the affidavit filed in support of the application I.A.No.6/2020 do not show that the defendants offered or furnished any security. Therefore, the prayer made by the defendants in that application for withdrawal of attachment cannot be considered under Order XXXVIII Rule 9 of the Code also. 20. Even on merits, the application filed by the defendants cannot be allowed. The application I.A.No. 6/2020 filed by the defendants was dismissed by the trial court mainly for the following reasons. Three items of properties in survey Nos.745/4, 745/7 and 745/6, which are sought to be retained under attachment, belong to third parties. Out of the remaining properties sought to be retained under attachment, only 20.30 cents of land in survey No.739 is dry land and the remaining items of properties are wet lands of inferior quality. The plaintiffs would be required to take a cumbersome procedure to convert the wet lands into dry lands. The trial court also found that these properties do not constitute sufficient guarantee for the plaint claim. **OP(C).No.1000 OF 2020** **10** 21. In the reply affidavit filed in the original petition, the first defendant has admitted that, as per the settlement register, the properties which are sought to be retained under attachment, are wet lands. The contention of the defendants is that, though they are shown as wet lands in revenue records, they are actually lands converted into garden lands. Then the question may arise whether conversion of the wet lands into dry lands had been done legally or illegally. There is no material to show that conversion of the wet lands into dry lands had been made after complying with all legal formalities. 22. Along with the counter affidavit filed in the original petition, the first plaintiff has produced copies of plan No.1 and 2 referred to in the affidavit filed in support of the application I.A.No.6/2020. The properties are described in two tables as Table 1 and Table 2. Table 1 contains the description of the properties proposed to be retained under attachment. All these properties are wet lands. Table 1 contains nine items of properties. Out of them, three items of properties belong to Saraswathy Amma, two items of properties belong to one Poulose and one item of property belongs to Ammukutty Amma. These persons are not parties to the suit. The name of the owner of one item of property is not shown in Table 1. Another item of property shown in **OP(C).No.1000 OF 2020** **11** Table 1 is not part of the plaint A schedule properties. Yet another item of property shown in Table 1 is attached by the order of the court in another suit. Table 2 contains seven items of properties which belong to the defendants which are sought to be released from attachment. Therefore, it can be seen that a deliberate attempt is made by the defendants to get the properties owned by them released from attachment by retaining the properties, which are wet lands and which belonged to third parties, under attachment. In these circumstances, Ext.P13 order passed by the court below cannot be found to be illegal or improper. 23. Learned counsel for the petitioners has contended that, even as per the agreement of sale entered into between the parties, the sale consideration for six acres of properties was fixed as more than six crores rupees and therefore, the contention of the plaintiffs that the value of the properties proposed to be retained under attachment would not satisfy the plaint claim of Rs.1,65,00,000/cannot be countenanced. This contention advanced by the defendants ignores the fact that the properties covered by the agreement for sale include different items of properties including wet lands and the value of each item of properties had not been separately fixed. **OP(C).No.1000 OF 2020** **12** 24. Attachment before judgment is a safeguard to protect the right of the plaintiff to enjoy the fruits of the decree that may be passed in his favour. It gives an assurance that the decree, if passed, would be satisfied. The sole object behind the order levying attachment before judgment is to give an assurance to the plaintiff that the decree, if made in his favour, would be satisfied. It is a sort of guarantee against the decree becoming infructuous on account of non-availability of any property of the defendant (See **Sardar Govindrao Mahadik v. Devi Sahai: AIR 1982 SC 989** ). Attachment over a portion of the properties cannot be withdrawn unless the court is satisfied that the remaining properties which are retained under attachment are sufficient to satisfy the plaint claim. Otherwise, the defendants have to furnish security required as provided under Order XXXVIII Rule 9 of the Code. 25. Learned counsel for the petitioners would submit that Saraswathy Amma, whose name is shown in Table 1 referred to earlier as the owner of three items of properties, is the mother of the first defendant and she is no more. Learned counsel for the petitioners has also submitted that, all the legal heirs of Saraswathy Amma are ready to execute bond before the trial court, furnishing the properties which belonged to Saraswathy Amma as security for the plaint claim. **OP(C).No.1000 OF 2020** **13** Learned counsel has further submitted that a copy of the bond signed by the legal heirs of Saraswathy Amma has been produced before this Court by the defendants. 26. Order XXXVIII Rule 9 of the Code contemplates withdrawal of attachment when the defendant approaches the court and furnishes the required security. The stage for applying Rule 9 of XXXVIII of the Code is really after the court passes an order for attachment under Rule 6(1). The provision contained in Rule 9 of XXXVIII of the Code pre-supposes the existence of an order of attachment. This provision confers an independent and substantive statutory right on a defendant to bring to the notice of the court that he is in a position to furnish security to meet the claim of the plaintiff and that therefore, there is no need for the order of attachment effected earlier to continue to be operative as the security proposed to be furnished would be sufficient to meet the claim of the plaintiff which may ripen into a decree (See **Thiruvengadam v. Kaliannan : AIR 1984 Madras 112** ). The remedy provided under Order XXXVIII Rule 9 of the Code is in the nature of independent remedy and can be availed of by defendant even after the order for attachment before judgment has become final. It is a provision beneficial and intended to give an opportunity to the defendant whose assets have been attached before judgment and **OP(C).No.1000 OF 2020** **14** who is in a position to offer security for safeguarding the plaintiff's claim. 27. When sufficient security is produced to the satisfaction of the court to cover up the entire amount claimed in the plaint, attachment can be lifted as double security is not intended by the legislature. In fact, Order XXXVIII Rule 9 of the Code provides for such a contingency. However, the court should be satisfied that while lifting the attachment under the above rule, sufficient security is furnished covering the entire decree amount including interest and costs (See **Sidharthan v. Praveen Chandran : 2008 (1) KLT 136** ). 28. In the instant case, the defendants have produced in this original petition a copy of the agreement executed by the legal heirs of Saraswathy Amma for furnishing their property as security. When security is offered or furnished by a third party to the plaint claim, his status is that of a surety. Merely an undertaking by a third party that he shall not alienate or encumber his property till the satisfaction of the decree debt, will not enable the court to proceed against his property in case of default committed by the judgment debtor to pay the amount (See **Muthuswami Gounder v. Palaniappa Gounder : AIR 1998 SC 3118** ). When security is furnished by a third party to the plaint claim, he has to execute bond thereby binding his property **OP(C).No.1000 OF 2020** **15** for such claim. The bond to be executed shall be in Form No.6 in Appendix-F to the First Schedule of the Code with necessary modifications, if any, required. Then only the decree holder would be able to proceed against the property of the surety as provided in Section 145 of the Code (See **Ramprasad Dalsukhram Soni v. Somabhai Kacharabhai : AIR 1964 Guj 260** and **Adduru Dasaratha Rami Reddy v. Vamireddy Vishnu : AIR 1992 AP 307** ). 29. The court below has found that it is incumbent upon the defendant himself to furnish security and a third party cannot furnish security. This finding made by the court below is not correct. Security is something which makes the enjoyment or enforcement of a right more secure, safe and certain. Security offered by a third party can be accepted by the court to withdraw attachment over the property of the defendant (See **Adduru Dasaratha Rami Reddy v. Vamireddy Vishnu : AIR 1992 AP 307 and Kalianna Kounder v. Marappa Kounder : (1993) 2 MLJ 33** ). 30. In the application filed as I.A.No.6/2020, the defendants did not offer or furnish any security for the plaint claim and they had not sought withdrawal of attachment on that ground. If any such security is furnished, it is for the trial court to decide whether such security is **OP(C).No.1000 OF 2020** **16** sufficient or not to satisfy the plaint claim and to pass appropriate orders on the application, if any, made by the petitioners in that court. 31. Consequently, the original petition is dismissed. The petitioners are at liberty to file fresh application for withdrawal of attachment in the court below under Order XXXVIII Rule 9 of the Code on furnishing the security required. If any such application is made, the trial court shall dispose of such application on its own merits. 32. Before parting, this Court cannot refrain from noticing the fact that the suit for return of advance money instituted in the year 2014 is still pending in the trial court. It is better that the parties may co-operate with the trial court for disposal of the suit at the earliest. If the parties and their counsel co-operate, the trial court shall take all earnest efforts to dispose of the suit itself as expeditiously as possible. ## Sd/- **R. NARAYANA PISHARADI JUDGE** ## **lsn** **OP(C).No.1000 OF 2020** **17** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE PHOTOCOPY OF PLAINT IN OS NO.38/2014 DATED 17.03.2014, SUB COURT, NORTH PARAVUR.** **EXHIBIT P2 TRUE PHOTOCOPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANT DATED 10.06.2014 IN OS NO.38/2014, SUB COURT, NORTH PARAVUR EXHIBIT P3 TRUE PHOTOCOPY OF ADDITIONAL WRITTEN STATEMENT DATED 4.11.2016 IN OS NO.38/2014, SUB COURT, NORTH PARVUR EXHIBIT P4 TRUE PHOTOCOPY OF ORDER DATED 29.1.20202 IN IA NO.1/2020 IN OS NO.38/2014, ADDL. SUB COURT, NORTH PARAVUR EXHIBIT P5 TRUE PHOTOCOPY OF IA NO.6/2020 IN OS 38/2014, ADDL.SUB COURT NORTH PARAVUR, TOGETHER WITH THE TWO PROPERTY SCHEDULES EXHIBIT P6 TRUE PHOTOCOPY OF COUNTER AFFIDAVIT DATED 18.3.2020 IN IA NO.6/2020 EXHIBIT P7 THE PHOTOCOPY OF THE SURVEY SKETCH PREPARED BY THE LAND SURVEYOR, SUDHEESHKUMAR K.B, AND THE COMMISSIONER'S REPORT, IN IA NO.3126/2013 IN OS NO.406/2022, SUB COURT, NORTH PARAVUR EXHIBIT P8 TRUE PHOTOCOPY OF FAIR VALUE REGISTER FOR THE RELEVANT SURVEY NUMBER DOWNLOADED FROM THE WEBSITE OF DEPARTMENT OF REGISTRATION EXHIBIT P9 TRUE TYPED COPY OF RELEVANT PORTION OF ANNEXURE B1 PRODUCED IN EXHIBIT P5 APPLICATION EXHIBIT P10 TRUE PHOTOCOPY OF VALUATION REPORT DATED 14.11.2019 BY S.R.VIPIN, REGISTERED ARCHITECT. EXHIBIT P11 TRUE PHOTOCOPY OF VALUATION REPORT DATED 14.11.2019 BY S.R. VIPIN, REGISTERED ARCHITECT. EXHIBIT P12 TRUE PHOTOCOPY OF SALE DATED NO.2257/2013, ANGAMALY SRO EXECUTED IN FAVOUR OF THE PLAINTIFFS.** **OP(C).No.1000 OF 2020** **18** **EXHIBIT P13 TRUE PHOTOCOPY OF ORDER DATED 15.6.2020 IN IA NO.6/202 IN OS 38/2014, ADDL.SUB COURT, NORTH PARAVUR** **EXHIBIT P14 TRUE PHOTOCOPY OF SALE AGREEMENT DATED 09.07.2012** ## **RESPONDENTS EXHIBITS:** **EXT.R1(1): TRUE PHOTOCOPY OF THE IA NO.6/2020 IN OS NO.38/2014 BEFORE THE HON'BLE ADDL SUB COURT, NORTH PARAVUR, FILED BY THE PETITIONERS HEREIN WHO ARE THE DEFENDANTS IN THE SUIT.** **EXT.R1(2): TRUE PHOTOCOPY OF THE COUNTER AFFIDAVIT FILED BY THE 1ST RESPONDENT/1ST PLAINTIFF IN IA NO.6/2020 IN O.S.NO.38/2014 BEFORE THE HON'BLE ADDL SUB COURT, NORTH PARAVUR.** **EXT.R1(3): TRUE PHOTOCOPY OF THE EXTRACT OF THE RELEVANT PAGES OF THE DATA BANK AS ISSUED BY THE AGRICULTURAL OFFICER, KRISHI BHAVAN, MANJAPRA ON 07.05.2020 AND WHICH IS REFERRED TO AS EXT.B1 IN EXT.P13 ORDER.** **EXT.R1(4): TRUE PHOTOCOPY OF THE FAIR VALUE OF LAND COMPRISED IN SURVEY NOS.745/4, 745/9, 745/7 AS OBTAINED FROM THE OFFICIAL WEBSITE OF THE DEPARTMENT OF REGISTRATION, STATE OF KERALA AND REFERRED TO AS EXT.B2 IN EXT.P13.** **EXT.R1(5): TRUE PHOTOCOPY OF THE COMPARATIVE TABLE OF PROPERTIES FROM WHICH ATTACHMENT IS SOUGHT TO BE LIFTED AND THOSE UPON WHICH THE DEFENDANTS CONCEDE TO CONTINUE THE ATTACHMENT IN IA NO.6/2020 IN OS NO.38/2014 BEFORE THE HON'BLE ADDL SUB COURT, NORTH PARAVUR.** **EXT.R1(6): COPY OF THE REGISTERED TRUST DEED NO.369/IV/2010/SRO, ERNAKULAM OF THE 1ST RESPONDENT IN O.P.(C)/1ST PLAINTIFF.** **EXT.R1(7): COPY OF THE REGISTERED SUPPLEMENTARY DEED NO.261/IV/2014 SRO, ANGAMALY OF THE 1ST RESPONDENT IN O.P. (C)/1ST PLAINTIFF.** **TRUE COPY** **P.A TO JUDGE** **LSN**