IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 23RD SEPTEMBER 2011 / 1ST ASWINA 1933 FAO.No. 244 of 2011 --------------------------- I.A.No.414/2011 in OS.70/2011 of PRINCIPAL SUB COURT,NORTH PARAVUR .................... APPELLANT (S):RESPONDENT/DEFENDANT: --------------------------------------------------------------- M/S. BINANI ZINC LTD., BINANIPURAM-683502, REGISTERED OFFICE AT 706, OM TOWER, 32, CHOWRINGHEE ROAD, KOLKATA-700071, REP. BY ITS VICE PRESIDENT(COMMERCIAL), MR. ROSHAN.K. BY ADV. SRI.JOSEPH KODIANTHARA, SENIOR ADVOCATE SRI.V.ABRAHAM MARKOS SRI.MATHEWS K.UTHUPPACHAN SRI.TERRY V.JAMES SRI.B.J.JOHN PRAKASH SRI.BINU MATHEW RESPONDENT(S): PETITIONER/ PLAINTIFF: ------------------------------------------------------------- M/S. RHEA REALTY PVT. LTD., REGISTERED OFFICE AT 1/105, MOTHI MANZIL, PARMAR GURUJI MARG, PAREL EAST, MUMBAI-400012, CORPORATE OFFICE AT KODIYATT CHAMBERS, RAJAJI ROAD, ERNAKULAM, KOVILVATTOM DESOM, ERNAKULAM VILLAGE, KANAYANNUR TALUK, REP. BY ITS GENERAL MANAGER- MR. M.R. NARAYANA SARMA, AGED 74 YEARS, S/O.LATE M.RAMACHANDRAN, H.NO.29/2399,PARIJATH, CHAMBAKKARA DESOM, POONITHURA VILLAGE, KANAYANNUR TALUK. BY ADV. SRI.V.V.ASOKAN SRI.K.S.SAJEEV KUMAR SRI.MAYANKUTTY MATHER. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 23/09/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: FAO 244 OF 2011: APPELLANT'S EXHIBITS: ANNEXURE-A..TRUE COPY OF SUIT OS 70/2011 ALONG WITH DOCUMENTS MARKED AS ANNEXURES A1 TO A34 IN THE IMPUGNED ORDER. ANNEXURE-B..TRUE COPY OF AFFIDAVIT AND PETITION IN IA 414/2011 IN OS 70/2011. ANNEXURE-C..TRUE COPY OF THE ORDER DATED 8.3.2011 IN IA 414/2011 IN OS 70/2011. ANNEXURE-D.TRUE COPY OF WRITTEN STATEMENT DATED 16.6.2011 FILED BY THE APPELLANT/DEFENDANT IN OS 70/2011. ANNEXURE-E..TRUE COPY OF COUNTER AFFIDAVIT DATED 16.6.2011 FILED BY THE APPELLANT/DEFENDANT IN IA 414/2011 IN OS 70/2011. K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------- F.A.O.No.244 of 2011 ----------------------------------------- Dated, this the 23rd day of September, 2011 J U D G M E N T K.M.Joseph, J. Appellant is the defendant in a suit for specific performance. The respondent/plaintiff filed an application seeking interim injunction against alienation of the petition schedule properties to third parties or encumbering the same pending disposal of the suit. The trial court has considered the matter and granted an interim order of injunction. It is feeling aggrieved by the said order, the appellant is before us. We heard the learned senior counsel for the appellant and Sri.Mayankutty Mather, learned counsel appearing for the respondent. 2. Learned counsel for the appellant would no doubt, contend that this is a case where the plaintiff was not ready and willing to perform its part of the contract. This is a case where the plaint schedule property is agreed to be sold for about Rs.10 crores. According to the appellant, the contract was entered into on 29.9.2007. By 26.10.2007 a sum of Rs.3 crores was paid. He points out that the agreement was to be fully performed by FAO 244/2011 -2- 29.12.2007. There is, however, a clause permitting extension of time. It was extended till 29.1.2008. He submits that two more cheques were given in a sum of Rs.2 crores in all. According to him, the contract was to be fully performed by 29.2.2008. However, he submits that the plaintiff/respondent started insisting on for production of certain certificates for the first time on 27.2.2008. He further points out that plaintiff has not performed its obligations. He further points out that the suit itself is filed only in February, 2011. He would submit that the appellant company desired to go ahead with an expansion plan and towards the expansion plan while the company does not intend to alienate the property, it is necessary to encumber the petition schedule property to raise capital. He would submit that the company is also willing to pay back Rs.5 crores. 3. Per contra, learned counsel for the respondent would point out that no interference is called for and he would submit that actually on facts there is no bona fides in the claim of the appellant that the appellant plans to expand its operations and it requires to raise funds by encumbering the plaint schedule property. He would also submit that the respondent company is FAO 244/2011 -3- prepared to deposit Rs.5 crores if this Court directs. He would also submit that the plaintiff was ready and willing to perform his part. 4. After having heard the learned counsel for the parties, we are of the view that, in the facts of this case, interest of justice would be sub served if we direct the Sub Court to dispose of the suit itself. Learned counsel for the respondent points out that pleadings are complete, in fact, issues are raised and the suit is posted for payment of balance court fee to 10.10.2011. In the circumstance of the case we direct the Principal Sub Judge, North Paravur to dispose of O.S.70/2011 finally on or before 28.2.2012 untrammelled by any observations contained in the impugned order. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS