IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 8TH JUNE 2009 / 18TH JYAISHTA 1931 WP(C).No. 7996 of 2009(O) ---------------------------------------- PETITIONER(S): ---------------------- MADHUMITA GUHA, (ADVOCATE RECEIVER IN MIS.CASE NO.7780 OF 2008, CITY CIVIL COURT AT CALCUTTA), REPRESENTED BY SHRI K.SHYAM SUNDAR, S/O.K.RAMAMURTHY, 86C, TOPSIA ROAD (SOUTH), KOLKATTA-700 046. BY ADV. MR.K.JAYAKUMAR RESPONDENT(S): ------------------------- 1. BENNY BABY, BENNY VILLA, P.O.PONGA, ALAPPUZHA DISTRICT, PIN-688 512. 2. THE SUB INSPECTOR OF POLICE, THIKODITHANAM, KOTTAYAM DISTRICT. ADDL. R3 IS IMPLEADED 3. SREI INFRASTRUCTURE FINANCE LTD., 32/2475-A1, IST FLOOR, PRATHEEKSHA, PALARIVATTOM, COCHIN 682 025, REP.BY ITS MANAGER MR.KASSI. IMPLEADED SUO MOTU AS ADDL. R3 AS PER ORDER DT. 25.3.09 , IN THE WRIT PETITION. ADV. MR.K.REGHU KOTTAPPURAM FOR R1 MR.P.GOPINATH MENON FOR ADDL. R3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.7996 of 2009 - O --------------------------------- Dated this the 8th day of June, 2009 J U D G M E N T This writ petition is filed under Article 226 and 227 of the Constitution of India seeking the following reliefs: “i) To declare that the suit, interim application and proceedings in O.S.NO.731/2008 on the file of the Munsiff's Court, Alappuzha do not stand in the way of the petitioner and/or her agents from enforcing Ext.P1 order. ii) To issue a direction to respondent No.2 directing him to handover the Excavator, which is the subject matter of Ext.P1 order, to the petitioner and /or her agents. iii) To issue a direction restraining respondent No.2 from handing over the Excavator, which is the subject matter of Ext.P1 order, to respondent No.1 herein 2. Petitioner is an advocate appointed as receiver in proceedings under Section 9 of the Arbitration and Conciliation Act, 1996 by the City Civil Court, Calcutta. Ext.P1 is the copy of that order and under that order petitioner has been directed to take over possession of an excavator with its accessories. It is the case of the petitioner that pursuant to that order, possession W.P.(C).No.7996 of 2009 - O 2 of the vehicle was taken over. Meanwhile, the respondent in the arbitration proceedings filed Ext.P3 suit before the Munsiff Court, Alappuzha seeking a decree of injunction to restrain the defendants in the suit, who are stated to be the petitioners in the arbitration proceedings, from taking over the excavator from his possession otherwise than in due process of law. In the suit the defendants, it is stated, gave an undertaking that till the disposal of the I.A the vehicle will not be forcefully taken away and the court thereupon noticing the undertaking adjourned hearing of the application. The petitioner, receiver appointed by the court, submits that pursuant to taking over possession of the vehicle in compliance of the order of the City Civil Court, Calcutta it had been taken away by the police and it is now lying at the police station in view of the disputes between the parties amd also on account of the order passed by the court in the interim application in Ext.P3 suit. Petitioner has approached this Court for the reliefs aforementioned invoking the jurisdiction of this court under Article 226 and 227 of the Constitution of India. 3. I heard the counsel on both sides. W.P.(C).No.7996 of 2009 - O 3 4. Having regard to the submissions made and taking note of the facts and circumstances presented with reference to the materials produced in the writ petition and also with the counter affidavit filed by the 1st respondent, I find that the petitioner can approach the court below with an application under order XXXIX Rule 4 CPC to vary or set aside the interim orders passed pointing out the circumstance that he had been lawfully appointed as receiver by a competent court to take over possession of the plaint schedule property. If any such application is moved, the learned Munsiff dealing with Ext.P3 suit shall pass appropriate order on that application after hearing both sides within a period of six weeks from the presentation of that application. Till the disposal of such application on merits, the interim order passed by this Court that the Sub Inspector of Police, Thrikkodithanam shall not hand over the excavator to anyone, shall continue to remain in force. The learned Government Pleader shall give appropriate instructions to the Sub Inspector to see that the order of the Court is complied in letter and spirit. I direct the parties in the proceedings to appear W.P.(C).No.7996 of 2009 - O 4 before the court below on 29.6.2009 so that the matter can be considered expeditiously by that court and a quietus given to the whole issue. The petitioner herein shall file an application under Order XXXVII Rule 4 CPC before the Munsiff Court, Alappuzha and serve copies of that petition on the respective counsel appearing for both sides on that suit before the above date. As directed earlier, the learned Munsiff shall dispose of such application, if any, moved within the period of six weeks. The writ petition is disposed of accordingly. Communicate a copy of the judgment to the Munsiff Court, Alappuzha forthwith. S.S.SATHEESACHANDRAN, JUDGE. bkn/-