IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 22ND AUGUST 2011 / 31ST SRAVANA 1933 OP(C).No. 1447 of 2011(O) ------------------------- IP.NO.4/2000 OF SUB COURT, MUVATTUPUZHA. .................... PETITIONER: -------------------- 1. C.K. JACOB, MANAGING PARTNER, CHAKIAT FINANCING COMPANY, CHAKIAT HOUSE, KOTHAMANGALAM P.O., PIN-686 693. 2. C.K. PETER, PARTNER, CHAKIAT FINANCING COMPANY, CHAKIAT HOUSE, KOTHAMANGALAM P.O., PIN-686 693. BY ADV. SRI.V.M.KURIAN, SRI.MATHEW B. KURIAN, SRI.K.T.THOMAS. RESPONDENT(S): -------------------------- 1. JOSEPH CHAKKU, PARAKKAL KUTTIKATTU HOUSE, THALAKOTTU KARA, CHERANELLUR, TALAPPILLY TALUK, PIN-682 034. 2. SR.UGENE, PARAKKAL KUTTIKATTU HOUSE, THALAKOTTU KARA, CHERANELLUR, TALAPPILLY TALUK, PIN-682 034 REPRESENTED BY POWER OF ATTORNEY HOLDER JOSEPH CHAKKU. 3. SR.ANNIE JAMES, PARAKKAL KUTTIKATTU HOUSE, THALAKOTTU KARA, CHERANELLUR, TALAPPILLY TALUK, PIN-682 034 REPRESENTED BY POWER OF ATTORNEY HOLDER JOSEPH CHAKKU. 4. SR.PHILO JAMES, PARAKKAL KUTTIKATTU HOUSE, THALAKOTTU KARA, CHERANELLUR, TALAPPILLY TALUK, PIN-682 034 REPRESENTED BY POWER OF ATTORNEY HOLDER JOSEPH CHAKKU. 5. DAISY JOSEPH, PARAMBIL HOUSE, KANJIRAPPALLY, KANJIRAPPALLY VILLAGE, KANJIRAPPALLY TALUK, PIN-686 507. OP(C).No. 1447 of 2011(O) 6. MARIA JOSEPH, PARAMBIL HOUSE, KANJIRAPPALLY, KANJIRAPPALLY VILLAGE, KANJIRAPPALLY TALUK, PIN-686 507. *ADDL. R7 & R8 IMPLEADED ADDL. R7: C.K. GEORGE, S/O.KURUVILLA, AGED 70, ENGINEER, RESIDING AT CHAKKIATH HOUSE, KOTHAMANGALAM KARA, KUTHUKUZHI P.O., PIN-686 691. ADDL. R8: VALSAMMA GEORGE, 62 YEARS, W/O.C.K. GEORGE, RESIDING AT CHAKKIATH HOUSE, KOTHAMANGALAM KARA, KUTHUKUZHI P.O., PIN-686 691. * ADDL. R7 & R8 ARE IMPLEADED, VIDE ORDER DATED 27/05/2011 IN I.A. NO.7963/2011 IN OP(C).1447/2011. R1 TO R4 BY ADV. SRI.JACOB SEBASTIAN. R5 & R6 BY ADV. SRI.M.R.ANANDAKUTTAN, SMT.M.A.ZOHRA, SRI.R.S.MADHU, SRI.MAHESH ANANDAKUTTAN. ADDL. R7 & R8 BY ADV. SMT.JEBI MATHER HISHAM, SMT.M.M.FATHIMA JALEENA, SRI.CHRISTOPHER ABRAHAM, SRI.K.A.HAZAN, SRI.K.P.WILSON, SRI.K.R.SAJITH. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 22/08/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs OP(C).No. 1447 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE I.P. NO.4/2000 FILED BEFORE THE SUB COURT, MUVATTUPUZHA. EXT.P2: COPY OF THE I.A. NO.1261/2010 IN I.P. NO.4/2000. EXT.P3: COPY OF THE RELEASE DEEDE NO.3270/77 OF KOTHAMANGALAM SRO. EXT.P4: COPY OF THE ORDER DATED 03/11/2000 IN COMPLAINT NO.14/1999 PASSED BY THE STATE COMMISSION. EXT.P5: COPY OF THE EXECUTION PETITION NO.9/2007 IN COMPLAINT NO.14/99 FILED BY RESPONDENTS 5 AND 6 BEFORE THE STATE COMMISSION. EXT.P6: COPY OF THE APPLICATION FILED BY THE PETITIONERS. EXT.P7: COPY OF THE ORDER DATED 05/03/2011 PASSED BY THE COMMISSION. EXT.P8: COPY OF THE SKETCH OF THE PROPERTY. EXT.P9: COPY OF THE VALUATION REPORT SUBMITTED BY SRI.M.N. PARTHASARATHI, VALUER. EXT.P10: COPY OF THE ENCUMBRANCE CERTIFICATE DATED 26/07/2010 ISSUED BY KOTHAMANGALAM SRO. RESPONDENT'S EXHIBITS: EXT.R7A: COPY OF THE INJUNCTION ORDER IN O.S.261/2010. EXT.R7B: COPY OF THE COMMISSION REPORT IN O.S.231/2010. EXT.R7C: COPY OF THE COMPLAINT IN C.M.P.953/2003. EXT.R7D: COPY OF THE TITLE DEED NO.79/2010. EXT.R7E: COPY OF THE NOTIFICATION IN MALAYALA MANORAMA ON 19/02/2011. EXT.R7F: COPY OF THE TITLE DEED NO.62 DATED 26/09/1988. EXT.R7G: COPY OF THE ENCUMBRANCE CERTIFICATE. EXT.R7H: COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER HEREIN. EXT.R5(A): COPY OF THE INJUNCTION ORDER DATED 03/09/2010 IN I.A.1587/2010 IN O.S.261/2010 OF THE MUNSIFF'S COURT, MUVATTUPUZHA. (P.T.O.) OP(C).No. 1447 of 2011(O) EXT.R5(B): COPY OF THE COMMISSION REPORT DATED 14/05/2010 IN O.S.231/2010. EXT.R5(C): COPY OF THE SALE DEED DATED 13/02/2010. EXT.R5(D): COPY OF THE NOTIFICATION PUBLISHED IN MALAYALA MANORAMA DAILY IN 19/02/2011. EXT.R5(E): COPY OF THE TITLE DEED DATED 26/09/1988. EXT.R5(F): COPY OF THE ENCUMBRANCE CERTIFICATE DATED 24/01/2011. EXT.R7(a): COPY OF THE PARTNERSHIP DEED DATED 01/04/1992. EXT.R7(b): COPY OF THE RELEASE DEED DATED 19/09/1997 FILED BEFORE THE REGISTRAR OF FIRMS. EXT.R7(c): COPY OF THE JUDGMENT OF THE HIGH COURT IN WP(C) NO. 28841/2003 DATED 27/02/2007. EXT.R7(d): COPY OF THE INJUNCTION ORDER IN O.S.261/2010. EXT.R7(e): COPY OF THE COMMISSION REPORT IN O.S.231/2010. EXT.R7(f): COPY OF THE COMPLAINT FILED BY THE ADDITIONAL 7TH RESPONDENT BEFORE THE J.F.C.M. COURT, KOTHAMANGALAM. EXT.R7g): COPY OF THE DOCUMENT NO.79/2010 DATED 13/01/2010. EXT.R7(h): COPY OF THE NEWS PAPER ADVERTISEMENT FOR THE SALE OF PROPERTY IN R7(i). EXT.R7(i): COPY OF THE TITLE DEED NO.62 DATED 26/09/1988. EXT.R7(j): COPY OF THE ENCUMBRANCE CERTIFICATE OF THE PROPERTY IN EXHIBIT R7(i). EXT.R7(k): COPY OF THE TITLE DEED NO.P-3711-2011 DATED 22/06/2011. EXT.R7(l): COPY OF THE TITLE DEED NO.3278/11/1 DATED 03/06/2011. EXT.R7(m): COPY OF THE COUNTER AFFIDAVIT FILED BY THE ADDITIONAL RESPONDENT IN I.P. NO.4/2000. //TRUE COPY// P.A. TO JUDGE rs THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.1447 of 2011 -------------------------------------- Dated this the 22nd day of August, 2011. JUDGMENT Respondents 1 and 5 in I.P.No.4 of 2000 of the court of learned Sub Judge, Muvattupuzha are the petitioners before me. That insolvency petition is filed by respondents 1 to 4/creditors to declare petitioners/respondents 1 and 5 and others who allegedly were partners of a private financing institution as insolvents. In the insolvency petition various contentions are raised by the respective parties. According to the petitioners, respondents 7 and 8 are also partners of the firm which is stoutly denied by them. They contended that they are not signatories to the partnership deed. It would appear that respondents 5 and 6 obtained an order in their favour from the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram (for short, “the Commission”) on 03.11.2000 for recovery of more than Rupees five lakhs. While so, respondents 1 to 4 filed Ext.P2, application – I.A.No.1261 of 2010 for sale of 1.25 acres of land belonging to the 2nd petitioner. There was objection to that application also. Petitioners and respondents 1 to 4 have no objection to the said application. Petitioners say that the said 1.25 acres is excluding the area occupied by the 7th respondent and another partner, situated towards the south-west and south- eastern corners of the entire extent belonging to the petitioners and that sale of that property would fetch `2.8 crores which is sufficient to discharge entire liability of petitioners and other partners. Learned counsel has pointed out that a OP(C) No.1447/2011 2 registered valuer has submitted Ext.P9, valuation report valuing the property excluding the area occupied by the 7th respondent and another partner and as against `2.8 crores that could be obtained according to the petitioners, the total liability of the partners is only 1.5 lakhs. Petitioners therefore pray that there may be a direction to the learned Sub Judge to expedite disposal of Ext.P2, application and in the meantime, it is prayed that the interim order of stay granted by this Court may remain in force. 2. The request for stay is objected by the contesting respondents (5th respondent onwards). Learned counsel for respondents 5 and 6 argued that respondents 5 and 6 have obtained an order dated 03.11.2000 from the Commission for recovery of more than Rupees five lakhs and that order has to be executed. It is contended that the interim order of stay prevents them from executing the said order. Respondents 7 and 8 have various contentions ranging from that they are not partners of the firm and that the area which the 7th respondent and another person (said to be a partner) occupy is also meant to be sold. According to the learned counsel, the 7th respondent is occupying the portion of the property towards its middle and that the property is proposed to be sold as per Ext.P2. It is also pointed out by learned counsel that this Court has directed in an earlier proceeding that the question whether respondents 7 and 8 are partners of the firm or not is to be decided by the learned Sub Judge. OP(C) No.1447/2011 3 3. It is not necessary for me in this proceeding to go into the rival contentions raised by the parties as referred above or, as reflected from the counters parties have filed before the learned Sub Judge. Now the request is only that Ext.P2, application is to be disposed of as early as possible. There is no reason why the application should not be disposed of at the earliest. 4. This Court on 10.05.2011 had granted an interim order of stay as prayed for. That interim order was being extended thereafter. Having regard to the circumstances, it is only appropriate that the said interim order remains in force until the learned Sub Judge disposed of Ext.P2, application. 5. If as contended by learned counsel for respondents 5 and 6 that the 6th respondent has not so far been impleaded as a party in the insolvency proceeding. I make it clear that it is open to the 6th respondent to move appropriate application before the learned Sub Judge in that regard. Resultantly this Original Petition is disposed of directing the learned Sub Judge, Muvattupuzha to dispose of Ext.P2, application as early as possible taking into account all the contentions that the parties have raised and as this Court has directed as submitted by learned counsel for respondents 7 and 8, so far as it is relevant for decision of Ext.P2, application. It is directed that the interim order of stay granted on 10.05.2011 and extended thereafter will remain OP(C) No.1447/2011 4 in force until disposal of Ext.P2, application. Learned Sub Judge, having regard to the grievance of the parties shall give priority for the disposal of Ext.P2, application. THOMAS P.JOSEPH, Judge. cks