IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 22ND OCTOBER 2009 / 30TH ASWINA 1931 WP(C).No. 20356 of 2009(O) --------------------------------------- OS.NO.43/2008 OF SUB COURT, TIRUR. .................... PETITIONER: ------------------- R.BALAKISHNAN,S/O.LATE E.RAMASWAMY, RESIDING AT NO.261,4TH CROSS,RMV EXTENSION, II STAGE,II BLOCK,BANGALORE-560 094. BY MR.V.CHITAMBARESH, SENIOR ADVOCATE, ADVS. MR.T.C.SURESH MENON, MR.JIBU P THOMAS, MR.P.S.APPU, MR.A.R.NIMOD, MR.C.A.ANOOP. RESPONDENTS: ------------------------ 1. EASWAR OIL INDUSTRIES PRIVATE LIMITED, REGISTERED OFFICE,16/390,VATTAMKULAM PANCHAYAT, EDAPPAL AMSOM,SUKAPURAM DESOM,PONNANI TALUK, MALAPPURAM DISTRICT. 2. MR.O.V.NAMBIAR,S/O.LATE T.V.P.NAMBIAR, RESIDING AT NO.36,COLLEGE ROAD,CHENNAI-600 006. 3. R.EASWARAN,S/O.LATE E.RAMASWAMY,RESIDING AT EASWAR NIVAS,TRIKKAVU,P.O.PONNANI, MALAPPURAM-679 577. 4. THE MANAGER,THE KERALA FINANCIAL CORPORATION,MALIYEKKAL BUILDING,IST FLOOR, MANJERI ROAD,UPHILL,MALAPPURAM-676 505. W.P.(C). NO.20356/2009-O: 5. PUNJAB NATIONAL BANK,REPRESENTED BY ITS GENERAL MANAGER,REGIONAL OFFICE,KOZHIKODE-16. R1 & R3 BY ADVS MR.A.K.JAYASANKAR NAMBIAR, MR.E.K.NANDAKUMAR, MR.K.JOHN MATHAI, MR.P.BENNY THOMAS, MR.ANIL D. NAIR, MR.NITHIN GEORGE, R4 BY ADV. MR. K. JAJU BABU, S.C, ADV. MR.R.S.KALKURA, R5 BY ADVS. MR.K.P.SUDHEER, SMT.P.JAYALAKSHMI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/10/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.20356/2009-O: APPENDIX PETITIONERS' EXHIBIT: EXT.P.1: COPY OF THE COMMON ORDER IN I.A. NOS.608/2009, 609/2009 AND 2553/2008 IN O.S. NO. 43/2008 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE OF TIRUR DTD. 28/02/2009. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.20356 OF 2009 -------------------------- Dated this the 22nd day of October 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Call for the records leading to the passing of Ext.P1 order in O.S No.43/2008 on the file of the Court of the Subordinate Judge of Tirur and set aside the same in its entirety. ii) Issue a writ in the nature of mandamus directing the court below to keep the documents of title in respect of the property in safe custody to prevent unauthorised sale or encumbrance. iii) Issue a writ in the nature of mandamus directing the Court of the Subordinate Judge of Tirur to denovo consider I.A Nos 608/2009, 609/2009 and 2553/2008 on merit expeditiously. iv) Issue such other writ, order or direction as this Hon'ble Court deems fit and proper in the circumstances of the case. W.P.(C).No.20356 OF 2009 Page numbers 2. Petitioner is the plaintiff in O.S No.43 of 2008 on the file of Sub Court, Tirur. Suit is for a declaration that the meetings held by the general body of the first respondent company on the dates specified are null and void and also for perpetual prohibitory injunction and for other reliefs. The respondents in the writ petition are the defendants in the suit. In the suit, the petitioner/plaintiff moved three applications, one for the appointment of a commission, the second for the appointment of a receiver and the third one for interim prohibitory injunction against the defendants. Respondents/defendants resisted those applications in which among other contentions they also challenged the maintainability of the suit contending that the disputes canvassed for can be adjudicated only by the Company Law Board. The learned Munsiff considered all the three applications together and disposed them vide Ext.P1 order impugned in the writ petition holding that the suit is not maintainable as the disputes raised W.P.(C).No.20356 OF 2009 Page numbers can be granted only by the Company Law Board. Propriety and correctness of Ext.P1 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. At the time of hearing, the learned counsel for the petitioner/plaintiff submitted that after the filing of the written statement by the defendants and casting of issues, the court has posted the case for hearing the issue raised as to the maintainability of the suit before proceeding with the trial. It is further submitted by the counsel that for hearing that issue is posted before the court on 27/02/2009. Issue of maintainability in a suit, it is submitted by the counsel, when it is raised as one among the issues, has to be considered as mandated under Order 14 Rule 2(2) of the Code of Civil Procedure. That being so, any finding/observation by the court as regards the maintainability of the suitwhile W.P.(C).No.20356 OF 2009 Page numbers disposing the interlocutory applications seeking the relief of interim injunction, appointment of receiver etc. should not affect the right of the parties to canvass on the maintainability of the suit when a decision is called for over that issue cast in the suit. So much so, the counsel submitted that a direction/order be given to the court below to consider the issue on the question of maintainability untrammelled by any of the findings entered in Ext.P1 order. I find considerable force in the submission made by the counsel. The learned counsel on the other side also submits that the issue on the question of maintainability has to be considered without reference to the finding entered by the court below in the impugned order. So much so, there will be a direction to the court below to decide the question of maintainability without in any way influenced by the finding entered/observation made in the impugned order. The learned counsel for the petitioner sought for reserving the right of the W.P.(C).No.20356 OF 2009 Page numbers petitioner to move application afresh for appointment of commission, receiver etc. in case the issue of maintainability is found in his favour. Whether the petitioner can seek for such relief afresh even if the issue maintainability is found in his favour or deferred for consideration in the trial of the suit is a matter to be looked into by the trial court and it is not appropriate and proper for this court to issue a direction or order as canvassed. I refrain from expressing any view as to whether the petitioner/ plaintiff can apply again for the reliefs under Ext.P1 order. If at all any such request is made again it is for the court below to consider and dispose it in accordance with law. Subject to the above observations, the writ petition is disposed. Hand over a copy of the judgment to the counsel on both sides on usual terms and send a copy to the court concerned forthwith. Sd/- S.S.SATHEESACHANDRAN, vdv //TRUE COPY// JUDGE P.A TO JUDGE