IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 23RD MARCH 2010 / 2ND CHAITHRA 1932 WP(C).No. 30996 of 2007(M) -------------------------- IP.11/2002 of I ADDL.SUB COURT, THRISSUR .................... PETITIONER(S): --------------- 1. SHEEJA JOY, W/O. JOY, VAZHAPILLY HOUSE, CHETTUPUZHA DESOM, PULLAZHI VILLAGE, THRISSUR. 2. V.T. JOY, S/O. VAZHAPILLY THOMAS, CHETTUPUZHA DESOM, PULLAZHI VILLAGE, THRISSUR DISTRICT. BY ADV. SRI.JIJO PAUL RESPONDENT(S): --------------- 1. JOSE, S/O. CHITTILAPPILLY KUNHAPPU ANTHONY, OLARIKKARA DESOM, ARANATTUKARA VILLAGE, THRISSUR TALUK. 2. JOSE, S/O. MELETH ANTHONY, LALOOR DESOM, ARANATTUKA VILLAGE,THRISSUR TALUK. 3. LAZAR, S/O. PULIKKAN PORINCHU, ARANATTUKA DESOM & VILLAGE,THRISSUR TALUK. 4. ANDREWS, S/O. ARAKKAL PORINCHU, MANNAMPETTA DESOM, MUKUNDAPURAM VILLAGE & TALUK, THRISSUR DISTRICT. 5. JOSE, S/O. KAITHAKKADAN MATHEW, CHETTUPUZHA, OLARIKKARA DESOM, PULLAZHI VILLAGE, THRISSUR TALUK. 6. POLY, S/O. MANGAN LONAPPAN, LALOOR DESOM, ARANATTUKARA VILLAGE,THRISSUR TALUK. 7. VARGHESE, S/O. MOOKKAN DEVASSY, OLARIKKARA DESOM, PULLAZHI VILLAGE,THRISSUR TALUK. WPC.30996/07 8. FRANCIS, S/O. ENOKARAN LONAPPAN, OLARIKKARA DESOM, ARANATTUKARA VILLAGE, THRISSUR TALUK. 9. THAMBI, S/O. CHERUVATHOOR ITTOOP, OLARIKKARA DESOM, ARANATTUKARA VILLAGE, THRISSUR TALUK. 10. JOHNY, S/O. THANIKKAL CHALISSERY ANTHONY KARAMUCK DESOM & VILLAGE, THRISSUR TALUK. 11. DAVIS, S/O. THAIKKATTIL LONAPPAN, PULLAZHI VILLAGE & DESOM, THRISSUR TALUK. 12. DEVASSY, S/O. CHERUVATHUR VAREEDH, CHETTUPUZHA DESOM, PULLAZHI VILLAGE,THRISSUR TALUK 13. VELAPPAN, S/O. KUNNUPARAMBIL VELAYUDHAN, ATHALOOR DESOM, THAVANNUR VILLAGE,MALAPPURAM DIST. 14. ARAVINDAKSHAN, S/O.KUMMALI VELAYUDHAN, ATHALOOR DESOM, THAVANNUR VILLAGE,MALAPPURAM DIST. 15. RAMACHANDRAN, S/O. AMBAKKAT NARAYANIAMMA, PULLAZHI DESOM & VILLAGE, THRISSUR TALUK. 16. PYLOTH, S/O. THATTIL KUNNAMBATH, INASU, OLARIKKARA DESOM, PULLAZHI VILLAGE, THRISSUR TALUK. 17. SUNITHA BABURAJ, W/O. PATTATHIPARAMBIL BABURAJ, ARIMBUR KAIPPILLY DESOM, VELUTHUR VILLAGE, THRISSUR TALUK. 18. JOSTIN, S/O. PULIKKAN LAZAR, ARANATTUKARA DESOM & VILLAGE, THRISSUR TALUK. 19. JOY, S/O. ARAKKAL GEORGE, OLARIKKARA DESOM & PULLAZHI VILLAGE,THRISSUR TALUK 20. SHINY LAZAR, W/O. MOKKAN LAZAR, CAICO ROAD, CHELAKKOTTUKARA, OLLUR VILLAGE, THRISSUR TALUK. 21. VARGHESE, S/O. KADAMBRA GABRIEL, REETHAPURAM DESOM & VILLAGE, KANIKKULAM TALUK, KANYAKUMARI DISTRICT. 22. SHAJU, S/O. CHAKKALAKKAL JOSE, OLARIKKARA DESOM, ARANATTUKARA VILLAGE, THRISSUR TALUK. 23. T.A. SAIMON, S/O. THEKKEKKARA ANTHONY, MANALUR DESOM & VILLAGE, THRISSUR TALUK. WPC.30996/2007 24. GEORGE, S/O. KOLLANNUR PORINCHU, CHETTUPUZHA DESOM, PULLAZHI VILLAGE,THRISSUR TALUK 25. MARY, W/O. PUVATHUKKARAN KURIAN, ARANATTUKARA DESOM & VILLAGE, THRISSUR TALUK. 26. PARAMESWARAKAIMAL, S/O. THANKAMMA NESSIAR, THEKKEPPAT HOUSE, CLARIKKARA, PULLAZHI VILLAGE, THRISSUR TALUK. 27. GEORGE, S/O. POTTOKKARAN ANTONY, MARATHAKKARA DESOM & VILLAGE, THRISSUR TALUK. 28. PAUL, S/O. PALLIPURATHUKARAN LONAPPAN, OLLUR DESOM & VILLAGE, THRISSUR TALUK. 29. RAJESH, S/O. KONJATH BHASKARAN, INDIRAJI ROAD, PULLAZHI DESOM & VILLAGE, THRISSUR TALUK. 30. M.R. SHAJU, S/O. RAPPAI, MADANI HOUSE, P.O. OLLUR, THRISSUR. 31. JOSPHEENA, W/O. PULLADY VARGHESE, P.O. PULLAZHI, ARANATTUKARA VILLAGE,THRISSUR TALUK 32. VARGHESE, S/O. PULLADY PYLOTH, ARANATTUKARA VILLAGE, P.O. PULLAZHI,THRISSUR TALUK 33. SHEELA, D/O. KANAVALA THOMAS, REPRESENTED BY HER POWER OF ATTORNEY HOLDER VARGHESE, S/O. PALLIPURATHUKARAN LONAPPAN, OLLUR VILLAGE. 34. SOUMYA KURIES & LOANS (P) LTD., SWARAJ ROUND, THRISSUR VILLAGE, REPRESENTED BY ITS MANAGING DIRECTOR. 35. T.F. KURIES (P) LTD., ARANATTUKARA VILLAGE, REPRESENTED BY ITS MANAGING DIRECTOR, DAVY V.THATTIL. 36. SURESHKUMAR, S/O. PULIPPARAMBIL ARUMUGHAN, ELTHURUTH, KARIATTUKARA DESOM,PULLAZHI VILLAGE,THRISSUR TALUK 37. SADANANDHAN, S/O. MANKUZHY ITTAMAN, MULLAKKARA DESOM, OLLUKKARA VILLAGE,THRISSUR TALUK 38. DHANYA RAJESH, W/O. KOZHIPARAMBIL RAJESH ELTHURUTH, KARIATTUKARA DESOM, PULLAZHI VILLAGE, THRISSUR TALUK. 39. THANKAM PADMANABHAN, W/O. PALLICHADATH PADMANABHAN, OLARIKKARA DESOM, PULLAZHI VILLAGE, THRISSUR TALUK. WPC.30996/07 40. SUNITHA MANOJ, W/O. PALLICHANDATH MANOJ, OLARIKKARA DESOM, PULLAZHI VILLAGE, THRISSUR TALUK 41. ANIE BENJAMIN, CHIRAYATH HOUSE, OLARIKKARA, PULLAZHI, THRISSUR-12. 42. KOCHUDEVASSY, S/O. THALIAPARAMBIL VAREEDH, PUDUKKAD DESOM, THORAVU VILLAGE, MUKUNDAPURAM TALUK. 43. V.J. FRANCIS, S/O. VADUKKOOT JOSEPH, CHITTATTUKARA DESOM & VILLAGE, THRISSUR TALUK, NOW AT A/805, USHA NAGAR, BANDOOP 78, BOMBAY. 44. V.K. TRADERS, OLARI DESOM 7 VILLAGE, THRISSUR TALUK, REPRESENTED BY ITS PROPRIETOR, JAYAVALLI. 45. VINNI DEVASSY, S/O. C.V.DEVASSY, CHERUVATHOOR HOUSE, P.O. CHETTUPUZHA. 46. ALICE DEVASSY, W/O. DEVASSY, CHERUVATHUR HOUSE, P.O. CHETTUPUZHA, THRISSUR TALUK. 47. FENNI DEVASSY, S/O. C.V.DEVASSY, CHERUVATHUR HOUSE, P.O. CHETTUPUZHA, THRISSUR TALUK. 48. INNOCENT, S/O. PAZHAYEDATHUPARAMBIL DEVASSY,VELUTHUR VILLAGE & DESOM, THRISSUR TALUK. 49. K.P. ANTONY, SOLE PROPRIETOR, K.P. JEWELLARY, OLARIKKARA, THRISSUR-12, S/O. KATTUKKARAN POULOSE, OLARIKKARA DESOM, PULLAZHI P.O., ARANATTUKARA VILLAGE, THRISSUR TALUK. 50. OLARIKKARA INVESTMENTS AND HIRE PURCHASE (P) LTD., PULLAZHI DESOM & VILLAGE, THRISSUR TALUK, REPRESENTED BY ITS CHAIRMAN, OUSEPH ANTO. ADV. SRI.G.SREEKUMAR (CHELUR) FOR R2-4,R9-12 SRI.G.SREEKUMAR (CHELUR) FOR R14,15,16,20,29 SRI.P.SANTHOSH (PODUVAL) FOR R42 SRI.G.SREEKUMAR (CHELUR) FOR R24 SRI.K.RAVI (PARIYARATH) FOR R24 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.30996/2007 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PETITION FILED BY THE 1ST RESPONDENT HEREIN AS I.P.NO.11/2002 DATED 5.6.2002 BEFORE THE COURT OF SUB JUDGE, THRISSUR. EXT.P2: COPY OF THE COUNTER DATED 14.3.2003 FILED BY THE PETITIONERS HEREIN IN EXT.P1 PROCEEDINGS. EXT.P3: COPY OF THE APPLICATION FOR IMPLEADING FILED BY THE 5TH RESPONDENT HEREIN AS I.A.NO.2289/2002 IN I.P.NO.11/2002 DATED 15.6.2002. EXT.P4: COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONERS HEREIN IN EXT.P3 PETITION. EXT.P5: COPY OF THE ORDER OF THE SUBORDINATE JUDGE, THRISSUR IN I.P.NO.11/2002 DATED 28.5.2007. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.30996 OF 2007 () ----------------------------------- Dated this the 23rd day of March, 2010 J U D G M E N T The writ petition is filed seeking mainly the following reliefs: i. to call for the originals of the records leading to Ext.P5. ii. to issue a writ of certiorari, quashing and setting aside Ext.P5. iii. to declare that respondents 2 to 48 are not entitled to get themselves impleaded in Ext.P1 as additional petitioners. 2. Writ petitioners are respondents 2 and 3 in an insolvency proceedings I.P.No.11 of 2002 pending on the file of the Sub Court, Thrissur. The above petition has been filed to declare the 1st respondent in the petition as an insolvent. Petitioners are stated to be the purchasers of an immovable WPC.30996/07 2 property from the 1st respondent who is sought to be declared as an insolvent in the proceedings. During the pendency of the proceedings, an application was moved by some strangers claiming that they too are creditors, to whom amount is due from the 1st respondent, seeking their impleadment in the petition. The court below, after hearing both sides, allowed that application vide Ext.P5 order. Propriety and correctness of Ext.P5 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the learned counsel for the petitioners Adv.Sri.Jijo Paul and also the learned counsel appearing for the contesting respondents Adv.Sri.G.Sreekumar. The learned counsel for the petitioners inviting my attention to Sections 33 of the Insolvency Act, contended that the petitioners, who have been ordered to be impleaded in the proceedings cannot be impleaded at this stage of the proceedings and their impleadment can be permitted only after an order of WPC.30996/07 3 adjudication has been made by the court, and that too, in case a finding is entered that the 1st respondent has committed act of insolvency. Pointing out the essential requirements to be satisfied for presenting a petition at the instance of a creditor to declare a debtor as an insolvent under the provisions of the Insolvency Act, with reference to Section 9 of the Insolvency Act, the learned counsel contended that the Act of Insolvency on which the petition is based must have occured three months before the presentation of such petition. In the case of the present petitioners who have been ordered to be impleaded as additional petitioners, by allowing their application, the learned Sub Judge has not gone into that question as well, and at any rate, setting aside Ext.P5 order, a reconsideration of the matter is called for, is the submission of the learned counsel. On the other hand, the learned counsel appearing for the contesting respondents contended that the petitioners, as of right, can join the proceedings and what they need show was only that as creditors to the 1st respondent, he was indebted to them and as such, his act of insolvency with respect to them also have to be WPC.30996/07 4 adjudicated in the present proceedings. 4. There is no merit in the submissions made by the learned counsel for the petitioners that the additional creditors of the 1st respondent can be impleaded as additional parties to the proceedings only if an adjudication order is made in the proceedings. In the insolvency proceedings, any interested party can seek permission to join as a party and the court if satisfied that his presence is necessary, no doubt, he has to be impleaded as a party to the proceedings. That alone has been ordered in this case under Ext.P5 order. But it is seen, the court below by inadvertence has allowed the petitioners to be impleaded as additional petitioners in the petition. They could have been impleaded only as additional respondents. Petitioners, who presented the petition alone can be treated as the masters of the petition, and so much so, any impleadment of a third party in the petition filed by them as additional petitioners, in all likelihood, may cause difficulties and inconveniences even in the prosecution of the proceedings. So much so, Ext.P5 order WPC.30996/07 5 require to be modified. The court below is directed to implead the petitioners, who have moved the petitions for impleadment as additional respondents in the proceedings. Subject to the above modification in Ext.P5 order, the writ petition is closed. S.S.SATHEESACHANDRAN JUDGE prp WPC.30996/07 6