IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 28TH JANUARY 2011 / 8TH MAGHA 1932 FAO.No. 364 of 2010() ------------------------------- ( AGAINST ORDER DATED 12/10/2010 IN I.A.NO.4782/2010 IN OS.753/2010 of PRL.SUB COURT,THRISSUR ) .................... APPELLANTS/DEFENDANTS ----------------------------------------- 1. ABBAS KHALID, S/O.THEKKENCHERY THIRUTHYPARAMBIL CHALIL KHALID, PALUVAI DESOM, CHAVAKKAD AMSOM, CHAVAKKAD. 2. SHIYAS KHALID, S/O.THEKKENCHERY THIRUTHYPARAMBIL CHALIL KHALID, REP. BY POWER OF ATTORNEY HOLDER, KHALID S/O.THIRUTHYPARAMBIL CHALIL ABOOBACKER. BY ADV. SRI.K.ANAND (A.201) SMT.LATHA KRISHNAN RESPONDENT(S): PLAINTIFF ------------------------------------------ EATTONNIL MUHAMMADUNNI, S/O.MUHAMMED, VADAKKEKKADU AMSOM, DESOM, CHAVAKKAD TALUK, PIN - 680 506. BY ADV. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 28/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts THOTTATHIL B. RADHAKRISHNAN & P.S.GOPINATHAN, JJ. -------------------------------------- F.A.O.No.364 OF 2010 -------------------------------------- Dated this the 28th day of January, 2011 J U D G M E N T ~~~~~~~~~~~ Thottathil B. Radhakrishnan, J. The defendants challenge an order of attachment before judgment of two items of immovable properties. 2. The plaintiff and defendants entered into an agreement for sale in relation to item No.1. On the allegation that the performance of that failed owing to the conduct of the defendants, the plaintiff sued for return of advance of Rs.One crore eighteen lakhs. The plaintiff sought attachment before judgment of two items of properties; item No.1 is the property involved in the agreement. The court below granted an order of attachment of both the items, ad interim and has by the impugned order made it absolute. 3. The learned counsel for the appellants argued that while the apprehension expressed by the plaintiff before the F.A.O.No.364/2010 2 court below to make the application for attachment before judgment is that the plaintiff has information through two persons that the defendants intend to sell off the properties, the defendants have shown with materials, that such apprehension was misplaced. It is further argued that even going by the amount fixed under the agreement for sale it would show that item No.1 would be sufficient to cover the debt under any decree that may be passed, even if the plaintiff were to succeed. He accordingly argued that attachment of item No.2 was wholly unnecessary. 3. The court below has given cogent reasons for ordering attachment before judgment of both the items. The defendants were themselves on record with the statement that item No.1 is involved in proceedings under the SARFAESI Act. The court below had, therefore, noted the probable diminution in value relatable to that situation and the funds that could be generated out of item No.I to satisfy any decree that may be passed in favour of the plaintiff. It accordingly stated reasons and ordered attachment before judgment of item No.2 also. As F.A.O.No.364/2010 3 regards the apprehension that the defendants would sell off the properties, suffice to say that the defendants are not, even before us, prepared to undertake that they will not alienate or encumber the properties. Not only that any assertion by them that they would not alienate or encumber would be insufficient having regard to the proceedings admittedly existing under the provisions of the SARFAESI Act. 4. For the aforesaid reasons, we do not find any ground to interfere with the impugned order in appeal. The challenge accordingly fails. The appeal is dismissed. The court below will try and dispose of the case, untrammelled by anything stated in the impugned order or in this judgment, as expeditiously as possible. (THOTTATHIL B. RADHAKRISHNAN, JUDGE) (P.S.GOPINATHAN, JUDGE) ps