Sayujya Finance v. Litta Babu, Mohan O.J., and Vincy Mohan

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 15[TH] DAY OF SEPTEMBER 2022 / 24TH BHADRA, 1944 ``` ## **`OP(C) NO. 803 OF 2022`** ## **`I.A. NO.7 OF 2022 IN I.A. NO.15241 OF 2019 IN OS 5197/2017 OF`** ## **`PRINCIPAL MUNSIFF COURT,THRISSUR`** ## **`PETITIONER:`** ``` SAYUJYA FINANCE LICENSE NO.KML-5918/2003, ADAM BAZAR BUILDING, CHEMBUKKAVU VILLAGE, THRISSUR REPRESENTED BY ITS PROPRIETOR, SHAJAN ANTONY, AGED 57 YEARS, S/O BAVELI ANTONY, RESIDING AT BAVELI HOUSE, HOUSE NO.227, MISSION QUARTERS DESOM, MANDAPATH LANE, CHEMBUKKAVU VILLAGE, THRISSUR-680005. (AS PER THE LICENSE, THE NAME OF THE PETITIONER IS SAYUJYA FINANCE. HOWEVER, IN THE IMPUGNED ORDER THE SPELLING OF THE NAME IS WRONGLY TYPED AS SAYOOJYA FIANANCE.), PIN - 680005 ``` ``` BY ADVS. SABU GEORGE P.B.KRISHNAN P.B.SUBRAMANYAN GEOFY GEORGE P ATHUL SHAJAN ``` ## **`RESPONDENTS:`** ``` 1LITTA BABU AGED 45 YEARS W/O E.R BABU @ PAVU, RESIDING AT EMMATTY HOUSE, BAZAR ROAD, VIYYURDESOM, VIYYUR VILLAGE, THRISSUR-680010., PIN - 680010 ``` ``` 2MOHAN O.J AGED 61 YEARS S/O OLLOOKKARAN JOSEPH, PURATHOOR, FASHION STREET, MISSION QUARTERS DESOM, CHEMBUKKAVU VILLAGE, THRISSUR- 680001., PIN - 680001 ``` ``` 3VINCY MOHAN AGED 56 YEARS ``` ## **`OP(C) NO. 803 OF 2022 2`** ``` W/O OLLOOKKARAN MOHAN JOSEPH, PURATHOOR, FASHION STREET, MISSION QUARTERS DESOM,CHEMBUKKAVU VILLAGE, THRISSUR, PIN - 680001 ``` ``` BY ADVS Eldho Paul ``` ``` SREEHARI R. ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 15.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **`OP(C) NO. 803 OF 2022 3`** ## **Dated this the 15[th] day of September, 2022** ## **JUDGMENT** Aggrieved by the order in I.A. No.7/2022 in I.A.No.15241/2019 in O.S. No.5197/2017(Ext.P8) of the Court of the Principal Munsiff, Thrissur, the plaintiff in the suit has filed the original petition. The respondents are the defendants in the suit. 2. The relevant facts for the determination of the original petition are: the petitioner is the plaintiff in the above suit filed against the respondents for a decree for realisation of an amount of Rs.5,88,500/- with interest. Along with the suit, the petitioner had filed I.A.No.19256/2017 to attach before judgment the properties of the second respondent. The application was allowed. The respondents 2 and 3 have filed Ext.P3 written statement admitting the transaction, but alleged that the amount was obtained for the business purpose of the first respondent, and, therefore, she alone is liable to repay the amount. The first respondent filed Ext.P4 ``` OP(C) NO. 803 OF 2022 4 ``` written statement denying the allegations in the plaint and the transaction in particular. On learning that the first respondent has only 1/3rd right over the attachment schedule property, the petitioner filed I.A. No.15241/2019 to modify the order of attachment to the property of the first respondent. The application was allowed. The first respondent filed I.A. No.7/2022 to lift the attachment over the attachment schedule property. The petitioner resisted the application, by filing Ext.P5 written objection and contended that the attachment could be lifted only on first respondent furnishing security for the principal amount with upto date interest, which would works out to Rs.10,58,332/- The respondents 2 and 3 also resisted the application by filing Ext.P7 written objection. The court below, by the impugned Ext.P8 order, allowed Ext.P5 application. Ext.P8 is erroneous, irregular and unsustainable in law. Hence, the original petition. 3. Heard; Sri.P.B.Krishnan, the learned counsel appearing for the petitioner, Sri. Eldho Paul, the learned counsel appearing for the first respondent and Sri. R. ## **`OP(C) NO. 803 OF 2022 5`** Sreehari, the learned counsel appearing for the respondents 2 and 3. 4. Sri.P.B.Krishnan, assailed the impugned order on the ground that the court below has not appreciated Order XXXVIII of the Code of Civil Procedure (in short ‘the Code’) in its proper perspective. He contended that Ext.P1 plaint was instituted to recover an amount of Rs.5,88,500/- from the respondents. The property of the first respondent was attached before judgment as per the order in I.A. No.15241/2019. The first respondent did not furnish any security as contemplated under Order 38 Rule 5 of the Code and the order of conditional attachment was made absolute. It was later, on 28.03.2022, that the first respondent filed Ext.P5 application to lift the order of attachment on the ground that the first respondent was ready to furnish cash security. Even though, the petitioner resisted the application, the same was allowed by the court below directing the first respondent to furnish security for an amount of Rs.5,88,500/-. Sri. P.B.Krishnan, drew the ## **`OP(C) NO. 803 OF 2022 6`** attention of this Court to Order 38 Rule 5 (b) of the code and contended that, under the said provision security is to be furnished to satisfy the decree amount and not the plaint claim unlike the provision under Order 38 Rule 1 of the Code, in a case of arrest before judgment. Hence, he contended that the impugned order is wrong. 5. Sri. Eldho Paul countered the above submission and submitted that the court below has exercised its discretionary powers and passed Ext.P8 order. The petitioner has sought for the realisation of an amount of Rs.5,88,500/-. The first respondent has offered cash security for the said amount. The contention of the petitioner is quite hypothetical because it can never be assumed whether the suit would be allowed or dismissed. The first respondent is being denied of her constitutional right to deal with the property. He relied on the decision of this Court in **Joy v. Cherukutty** [1991 (I) KLT 393] and contended that the procedure to be followed in lifting of attachment is as provided under Order XXI Rule 55 of the Code. Hence, he urged that the original petition be ## **`OP(C) NO. 803 OF 2022 7`** dismissed. 6. The question is whether there is any illegality or error in Ext.P8 order. 7. Ext.P1 plaint was instituted on 05.12.2017. At the initial stage, the petitioner had proceeded against the property of the first respondent, which was attached before judgment as per Ext.P2 report. Subsequently, on learning that the first respondent has also 1/3rd right over the attachment schedule property, the petitioner filed I.A.No.15241/2019 and an order of attachment was passed. The first respondent did not furnish any security and the order of attachment was made absolute. Later, the first respondent filed Ext.P5 application to lift the attachment. Even though the same was opposed by the petitioner, the court below lifted the attachment, permitting the first respondent to furnish security for the plaint claim of Rs.5,88,500/-. 8. Order 38 Rule 5 of the Code confers the power on the court, at any stage, on being satisfied that the defendant is likely to dispose or remove whole or part of ``` OP(C) NO. 803 OF 2022 8 ``` any property, to direct the defendant, within a time period fixed by a court, to furnish security that is sufficient to satisfy the decree. In case the defendant fails to show cause or furnish security, within the time period fixed by the court, the court would order the property to be attached. The court is empowered to remove the order of attachment, under Order 38 Rule 9 of the Code, when the defendant furnishes the security required, together with security for the cost of attachment, or when the suit is dismissed. 9. In the present case, the first respondent did not furnish security at the initial stage as provided under Order 38 Rule 5 of the Code. Consequently, the attachment was made absolute. It is later, that the first respondent came forward and furnished the security. By that time, five years have lapsed after the suit was instituted. 10. The petitioner has made a rough calculation in Ext.P6 objection stating that if the suit is to be decreed, he would be entitled to an amount of Rs.10,58,332/-. ## **`OP(C) NO. 803 OF 2022 9`** 11. I find sufficient force in the submission of Sri. P.B.Krishnan because the language used in Order 38 Rule 5 of the Code is that ‘security to be furnished is to satisfy the decree and not the plaint claim.’ 12. In the above analysis, I am of the view that the attachment can be lifted on the first respondent furnishing security for the plaint claim and interest from 07.12.2017 till 31.03.2022, which works out to Rs.9,46,436/-. Accordingly, I hold that Ext.P8 can be modified by directing the first respondent to furnish cash security for an amount of Rs.9,46,436/- within a period of one month from today. If said the amount is deposited before the court below, the order of attachment can be lifted. I am also of the view that a quietus can be given to the issue, taking into account the fact that the suit itself is of the year 2017, by directing the court below to consider and dispose of the suit itself within a specified time frame, which will do complete justice to both sides. In the result, in exercise of the supervisory powers of this Court under Article 227 of the Constitution of India, I ``` OP(C) NO. 803 OF 2022 10 ``` allow the original petition by passing the following orders;- (i) Ext.P8 order is modified by ordering the lifting of attachment over the 1/3 right of the first respondent’s property, on her depositing an amount of Rs.9,46,436/before the court below within one month from today. If the said amount is deposited, the order of attachment passed in I.A. No.7/2021 will stand lifted. (ii) As the suit is of the year 2017, I direct the court of the Principal Munsiff, Thrissur, to consider and dispose of O.S. No.5197/2017, in accordance with law, as expeditiously as possible, and at any rate on or before 23.12.2022. (iii) The parties shall bear their respective costs. **Sd/-** ## **C.S.DIAS, JUDGE** rmm03/09/2022 ## **`OP(C) NO. 803 OF 2022 11`** ## **`APPENDIX OF OP(C) 803/2022`** ## `PETITIONER EXHIBITS` - `Exhibit-P1 A TRUE COPY OF THE PLAINT DATED 05-122017 IN O.S NO.5197 OF 2017 ON THE FILE OF THE PRINCIPAL MUNSIFF'S COURT, THRISSUR` - `Exhibit-P2 A TRUE COPY OF THE ATTACHMENT REPORT DATED 13-12-2017 IN I.A NO.19256 OF 2017 IN O.S NO.5197 OF 2017 ON THE FILE OF THE PRINCIPAL MUNSIFF'S COURT, THRISSUR` - `Exhibit-P3 A TRUE COPY OF THE WRITTEN STATEMENT, DATED 04-12-2018 FILED BY DEFENDANTS 2 AND 3 IN O.S NO.5197 OF 2017 ON THE FILE OF THE PRINCIPAL MUNSIFF'S COURT, THRISSUR` - `Exhibit-P4 A TRUE COPY OF THE WRITTEN STATEMENT, DATED 18-03-2021 FILED BY DEFENDANT NO.1 IN O.S NO.5197 OF 2017 ON THE FILE OF THE PRINCIPAL MUNSIFF'S COURT, THRISSUR` - `Exhibit-P5 A TRUE COPY OF I.A NO.07 OF 2022,DATED 28-03-2022 IN I.A NO.15241 OF 2019 IN O.S NO.5197 OF 2017 ON THE FILE OF THE PRINCIPAL MUNSIFF'S COURT, THRISSUR` - `Exhibit-P6 A TRUE COPY OF THE COUNTER FILED BY THE PETITIONER HEREIN IN I.A NO.07 OF 2022, DATED 28-03-2022 IN I.A NO.15241 OF 2019 IN O.S NO.5197 OF 2017 ON THE FILE OF THE PRINCIPAL MUNSIFF'S COURT, THRISSUR` - `Exhibit-P7 A TRUE COPY OFTHE OBJECTION FILED BY RESPONDENTS 2 AND 3 IN I.A NO.07 OF 2022, DATED 04-04-2022, IN O.S NO.5197 OF 2017 ON THE FILE OF THE PRINCIPAL MUNSIFF'S COURT, THRISSUR` - `Exhibit-P8 A TRUE COPY OF THE ORDER DATED 08-04-2022 IN I.A NO.07 OF 2022 IN I.A NO.15241 OF 2019 IN O.S NO.5197 OF 2017 ON THE FILE OF THE PRINCIPAL MUNSIFF'S COURT, THRISSUR` ## **`OP(C) NO. 803 OF 2022 12`** ``` RESPONDENT EXHIBITS ``` ``` Exhibit R1 ``` ``` TRUE COPY OF THE FIXED DEPOSIT RECEIPT FOR RS.5,88,500/-DATED 20.4.2022 ISSUED BY FEDERAL BANK, THRISSUR BRANCH. ```