IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 10TH JULY 2008 / 19TH ASHADHA 1930 WP(C).No. 32771 of 2007(B) ------------------------------------- AGAINST THE ORDER IN OS 48/2002 IN OS.331/2001 of MUNSIFF COURT, PUNALUR ....................................... PETITIONERS -------------------- 1. K.NARAYANA PILLAI, AGED 76 YEARS, S/O.KRISHNA PILLAI, MULLACKAL PUTHEN VEEDU, SASTHAMKONAM WARD, PUNALUR. 2. C.N. ANIL KUMAR IN -DO- -DO- BY ADV. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN RESPONDENTS: ------------------------- 1. M.R.SURESH,S/O.RAMACHANDRA PANICKER GAYATHRI BHAVAN, BHARANIKAVU,PUNALUR PATHANAPURAM-691 305. 2. M.R.GAYATHRI DEVI, SOORYA GAYATHRI, K.P.8/650,KUNNATHU TEMPLE LANE, KUDAPPANAKUNNU THIRUVANANTHAPURAM 695 043 3. M.R.SEKHAR,SEKHAR TUTORAILS, PUNALUR FROM GAYATHRI BHAVAN, BHARANIKAVU, PUNALUR-691 305 4. G.N.VIJAYAMMA,,SEKHAR TUTORAILS, PUNALUR-691 305 5. T.GOPAKUMAR, MULLACKAL HOUSE NEAR SIVAN KOVIL, PUNALUR-691 305 6. J.SUMATHI AMMA, MELATHIL VEETTIL NEAR E.S.I., PUNALUR PUNALUR VILLAGE 691 305 BY ADV. SRI.G.S.REGHUNATH FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) No. 32771/2007 B APPENDIX PETITIONER'S EXHIBITS: EXT.P1. COPY OF THE PETITION IA NO. 4/2002, SUB COURT, KOTTARAKKARA. DATED 30/09/2002. EXT.P2. COPY OF THE APPLICATION OP TP NO. 146/07, DIST. COURT, KOLLAM DT. 15/6/2007. EXT.P3. COPY OF THE ORDER IN OP TP NO. 146/2007 DIST COURT, KOLLAM. RESPONDENT'S EXHIBITS : NIL. / TRUE COPY / tga M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P(C). NO. 32771 OF 2007 ------------------------------------------ Dated this the 10th day of July, 2008 JUDGMENT This petition is filed under Article 227 of Constitution of India challenging Ext.P3 order passed by District Judge, Kollam in O.P(TP) 146 of 2007. Petitioners filed the said transfer petition to order transfer of O.S.331 of 2001 and O.S. 48 of 2002 pending before Munsiff Court, Punalur to Sub Court, Kottarakkara to be tried along with insolvency case, I.P. 4 of 2002 pending before Sub court. Learned District Judge dismissed the petition. 2. Learned senior counsel appearing for petitioners and learned counsel appearing for second respondent were heard. 3. O.S. 331 of 2001 pending before Munsiff Court, Punalur was filed by third respondent for declaration of title to plaint A schedule property as well as the tutorial building in plaint C schedule property. Suit was instituted against respondents 1, 2 and 6. Respondents 1 to 3 and deceased Sudheer are the children of deceased Meenakshi Amma. Sixth respondent is the sister of deceased Meenakshi Amma. Third WPC 32771/07 2 respondent claimed title to the plaint A schedule property based on the will allegedly executed by Meenakshi Amma. That suit was resisted contending that the will relied upon by third respondent was subsequently modified by a settlement deed and also by a subsequent will executed by Meenakshi Amma. O.S. 48 of 2002 was subsequently instituted seeking a decree for fixation of the boundary. That suit was instituted by respondents 1 and 2 against third respondent. Insolvency petition 4 of 2002 was subsequently instituted by respondents 1 and 2 before Sub Court, Kottarakkara to declare third respondent an insolvent alleging acts of insolvency against him. The argument of the learned senior counsel is that even though the disputes to be resolved in O.S.331 of 2001 and O.S. 48 of 2002 are not the same to be resolved in the Insolvency Petition pending before Sub Court, Kottarakkara, evidence to be let in are interconnected and for a proper appreciation of evidence it is necessary to try suits as well as Insolvency Petition by the same court and therefore learned District Judge should have directed transfer of O.S. 331 of 2007 and O.S. 48 of 2002 to Sub Court, Kottarakkara and even if they are not jointly tried, they are to be tried by the very same court. Petitioners are the WPC 32771/07 3 subsequent transferees of 20 cents from the third respondent, out of the plaint B schedule property in O.S. 48 of 2002. In the Insolvency Petition that document is challenged alleging that it is a transaction hit by Section 6 of the Insolvency Act characterizing it as an act of insolvency. It is based on case that learned senior counsel argued that the matters are connected. Learned counsel appearing for second respondent argued that in O.S.331 of 2001 and O.S. 48 of 2002 question whether assignment deed in favour of petitioners is hit by Section 6 of Insolvency Act or the execution of Assignment is an act of Insolvency is not to be decided and in such circumstances there is no necessity to transfer the suits pending before Munsiff Court, Punalur to Sub Court, Kottarakkara and there is no reason to interfere with Ext.P3 order passed by the learned District Judge, invoking the powers provided under Article 227 of Constitution of India. 4. It is true that O.S. 331 of 2001 and O.S. 48 of 2002 are to be tried jointly. Under Ext.P3 order learned District Judge also found the same and directed petitioners to move the Munsiff for joint trial. Petitioners are at liberty to file an application before the Munsiff Court and if such an application WPC 32771/07 4 is filed, learned Munsiff is to order joint trial of both the suits. 5. The question is whether trial of the said suits is to be ordered along with Insolvency Petition 4 of 2002 pending before Sub Court, Kottarakkara or suits are to be transferred to Sub Court, Kottarakkara, even if the suits are not to be jointly tried along with Insolvency Petition. 6. Even though learned senior counsel vehemently argued that Insolvency Petition is connected with the suits pending before Munsiff Court, Punalur because of the act of collusion on the part of respondents 1 to 3 and also because of the illegal dispossession of the petitioners from 20 cents of plaint B schedule property in O.S. 48 of 2002 purchased by them from the third respondent, as rightly pointed out by learned counsel appearing for second respondent, question to be decided in the Insolvency Petition 4 of 2002 is entirely different from the question to be decided in those suits. The question whether the assignment deed executed by third respondent is an act of insolvency or not is not a matter to be decided in O.S.331 of 2001 or O.S. 48 of 2002. Therefore I do not find it necessary to order joint trial of the suits with the Insolvency Petition. 7. Then the question is whether to enable the same WPC 32771/07 5 court to consider the suits and the Insolvency Petition it is necessary to order transfer. I do not find that even for that purpose suits are to be transferred to Sub Court, Kottarakkara. If the case of petitioners is that respondents are colluding and the way in which the suits are being prosecuted establish collusion, that fact could be brought to the notice of the Sub Court at the time of trial of Insolvency Petition 4 of 2002 and I do not find that it is necessary to transfer the two suits pending before Munsiff Court, Punalur to Sub Court. There is no illegality or irregularity in Ext.P2 order warranting interference. Writ petition is dismissed. M. SASIDHARAN NAMBIAR, JUDGE Okb/-