T. Shaji v. Plaintiff and Garnishees in C.S.No.9/2022, OP(C) No.1929 of 2022, Commercial Court (Sub Court), Ottappalam

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 1[ST] DAY OF MARCH 2023 / 10TH PHALGUNA, 1944 ``` ## **`OP(C) NO. 1929 OF 2022`** ## **`I.A NO.1/2022 IN CS 9/2022 OF THE COMMERCIAL COURT (SUB COURT),`** ## **`OTTAPPALAM`** ## **`PETITIONER/RESPONDENT NO.1/DEFENDANT:`** ``` T. SHAJI AGED 49 YEARS S/O THOTTUNGAL KELU NARAYANAN, THOTTUNGAL HOUSE, KUMBIDI, ANAKKARA, PALAKKAD DISTRICT, PIN - 679553 ``` ``` BY ADVS. MANU VYASAN PETER P.B.KRISHNAN SABU GEORGE ``` ## **`RESPONDENTS/APPLICANT & RESPONDENTS 2 TO 5 IN I.A./PLAINTIFF AND`** ## **`NOT PARTIES IN SUIT:`** ``` 1RAJAN M.V. S/O MARATH VELAYUDHAN, RESIDING AT MARATH HOUSE, NAGALASSERY P.O., PALAKKAD DISTRICT - 679533. REPRESENTING SOLE PROPRIETORSHIP CONCERN M.V. RAJAN, 1/1128A, KUWAIT BUILDING, KOOTTANAD, NAGALASSERY VILLAGE, PATTAMBI TALUK, PALAKKAD, PIN - 679533 ``` - `2 CHIEF ENGINEER (ROADS) PUBLIC OFFICE COMPLEX, PUBLIC OFFICE POST, THIRUVANANTHAPURAM, PIN - 695033` - `3 SUPERINTENDING ENGINEER PWD ROADS ROADS NORTH CIRCLE, PWD COMPLEX, MANANCHIRA, KOZHIKODE, PIN - 673001` - `4 EXECUTIVE ENGINEER PWD ROADS DIVISION, VYAPPARAPADI, KACHERIPADI, MANJERI, MALAPPURAM DISTRICT, PIN - 679517` - `5 EXECUTIVE ENGINEER` ## **`OP(C) NO. 1929 OF 2022 2`** ``` PWD, ROADS DIVISION, CIVIL STATION, PALAKKAD, PIN - 678001 ``` ``` BY ADV SANTHEEP ANKARATH ``` ``` GOVERNMENT PLEADER SRI. S UNIKRISHNAN ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 01.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP(C) NO. 1929 OF 2022 3 ``` **Dated this the 1[st] day of March, 2023** ## **JUDGMENT** The original petition is filed challenging Ext.P3 order passed in I.A. No.1/2022 in C.S.No.9/2022 by the Commercial Court, Ottappalam. The petitioner is the defendant and the first respondent is the plaintiff. The respondents 2 to 5 are not parties to the suit, but have been impleaded in the status of garnishee. 2. The relevant background facts leading to Ext.P3 order, are:- (i) The first respondent has filed the above suit against the petitioner for recovery of money. (ii) Along with the suit, the first respondent had filed I.A. No.1/2022 (Ext.P2), to direct the petitioner to furnish security for the suit claim and to order the respondents 2 to 5 not to disburse the funds that are payable to the petitioner. (iii) The court below, by the impugned Ext.P3 order, has directed the respondents 2 to 5 not to release any ## **`OP(C) NO. 1929 OF 2022 4`** amount due to the petitioner. Ext.P3 order is erroneous and unsustainable in law. Hence, the original petition. 3. Heard; Sri.P.B.Krishnan, the learned the counsel appearing for the petitioner, Sri. Santheep Ankarath, the learned counsel appearing for the first respondent and the learned Government Pleader appearing for the respondents 2 to 5. 4. Sri.P.B. Krishnan, vehemently contended that the court below has gone wrong in passing Ext.P3 order, because the order is akin to a proceedings under Order 21 Rule 46 of the Code of Civil Procedure (in short Code’),which is not applicable on the original side under Order 38 Rule 5 of the Code. He also contended that even if the provision is found applicable a garnishee order can only be passed by the court having territorial jurisdiction as per the law laid down in **Bulkeesu Beegum V. Gonzago** [1961 KHC 230]. According to him, the court below has failed to appreciate the point that only the property of the defendant can be attached invoking Order 38 Rule 5 of the Code and not that of third ## **`OP(C) NO. 1929 OF 2022 5`** party strangers. 5. The above submissions were assiduously countered by Sri.Santheep Ankarath, who placed on the decisions of this Court in **Greater Cochin Development Authority v. Harrisons Malayam Ltd** . [2002 KHC 206] and that of the Andhra Pradesh High Court in **Surender Singh Bajaj v. M/s Kitty Steels Ltd and Another** [2003 KHC 3079], to fortify his contentions that there is no embargo to attach a property of a third party before judgment, but the same can only be finalised and released after the decree. Moreover, the petitioner has rushed to this Court even prior to the filing a counter affidavit to Ext.P2 application. Therefore, the impugned Ext.P3 order is legal and justifiable, and not liable to be interfered with by this Court. Hence, the original petition may be dismissed. 6. The short question is, whether there is any error in Ext.P3 order. 7. On an appreciation of the pleadings and materials on record, it can be gathered that Ext.P2 application has ## **`OP(C) NO. 1929 OF 2022 6`** been filed under Order 38 Rule 5 of the Code, to direct the petitioner to furnish security for an amount of Rs.1,28,67,950/- and to order the respondents 2 to 5 not to disburse the amounts payable to the petitioner as mentioned in the schedule attached to the application. 8. Admittedly, the petitioner has not filed his objection to Ext.P2 application. 9. The court below, by the impugned Ext.P3 order, has only passed a conditional order of attachment by directing the respondents 2 to 5 not to release any amount to the petitioner until further orders. Therefore, it is upto the petitioner to show cause against the conditional order. 10. Sri.P.B. Krishnan submitted that the petitioner has now filed his objections to Ext.P2 application. 11. In the above factual scenario, without expressing anything on the merits of the rival submissions, I am of the view that it would be upto the court below to decide whether Ext.P3 conditional order of attachment is to be made absolute or not after adverting to the rival ``` OP(C) NO. 1929 OF 2022 7 ``` submissions of both sides. Thus, I relegate the parties back to the court below to address their respective arguments and leave it to the court below to decide the point posed. Resultantly, in exercise of the supervisory powers of this Court under Article 227 of the Constitution of India. I dispose of the original petition by directing the Commercial Court, Palakkad to consider and dispose of I.A. No.1/2022 in C.S.No.9/2022, after adverting to the rival pleadings and submissions made by both sides, in accordance with law, as expeditiously as possible, at any rate, within a period of one month from today, untrammelled by any observations made in this judgment. **Sd/-** **C.S.DIAS, JUDGE** rmm01/03/2023 ``` OP(C) NO. 1929 OF 2022 8 ``` ## **`APPENDIX OF OP(C) 1929/2022`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1TRUE COPY OF THE PLAINT DATED 01.09.2022 IN C.S NO. 9 OF 2022 ON THE FILE OF THE COMMERCIAL COURT (SUB COURT), OTTAPPALAM ``` ``` Exhibit P2TRUE COPY OF THE I.A NO. 1 OF 2022 DATED 01.09.2022 IN C.S NO. 9 OF 2022 ON THE FILE OF THE COMMERCIAL COURT (SUB COURT), OTTAPPALAM ``` ``` Exhibit P3TRUE COPY OF THE ORDER DATED 03.09.2022 IN I.A NO. 1 OF 2022 IN C.S NO. 9 OF 2022 ON THE FILE OF THE COMMERCIAL COURT (SUB COURT), OTTAPPALAM ```