IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 8TH JANUARY 2010 / 18TH POUSHA 1931 WP(C).No. 37235 of 2009(O) -------------------------- OS.954/2009 of PRL.SUB COURT,THRISSUR .................... PETITIONER(S): --------------- A.J.JOHN, S/O.JOSE ALUKA, RESIDING AT PUDUSSERRY ALUKA HOUSE, CHIYYARAM VILLAGE, CHELAKOTTUKARA DESOM, THRISSUR CORPORATION. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.JIBU P THOMAS SRI.A.R.NIMOD SRI.C.A.ANOOP RESPONDENT(S): --------------- 1. P.U.RAJU, S/O.PARAMBIKATTIL P.K.UNNI, RESIDING AT PADINJARE CHALAKUDY, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 2. DR.CHACKO THOPPIL, S/O.THANNIKAL THOPPIL ANTONY, RESIDING AT IDDANDAWARRIER ROAD, THRISSUR DISTRICT. ADV. SRI.JIJO PAUL FOR R1 SRI. N. SUBRAMANIAM FOR R2 SRI.M.S. NARAYANAN FOR R2 SRI.P.T. GIRIJAN FOR R2 SMT. USHA NARAYANAN FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.37235/09 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE CLAIM PETITION PUT IN BY THE PETITIONER DATED 18.11.2009 IN O.S.NO.954/2009 OF THE SUB COURT, THRISSUR. EXT.P2: COPY OF THE APPLICATION FOR INJUNCTION PUT IN BY PETITION DATED 5.12.2009 IN I.P.NO.12/2009 OF THE SUB COURT, THRISSUR. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.37235 OF 2009 () ----------------------------------- Dated this the 8th day of January, 2010 J U D G M E N T The writ petition is filed seeking mainly the following reliefs: i. to issue a writ in the nature of mandamus directing the Court of the Principal Subordinate Judge of Thrissur to dispose of Ext.P1 claim petition on merits expeditiously after hearing the petitioner also. ii. to issue a writ in the nature of mandamus directing the Court of the First Addl. Subordinate Judge of Thrissur to dispose of Ext.P2 injunction application on merits expeditiously after hearing the petitioner also. 2. Petitioner has purchased under a sale deed a property having an extent of 24.860 cents of land comprising a building pursuant to an agreement of sale from the 2nd respondent. In respect of that property, alleging that there was a previous WPC.37235/09 2 agreement of sale in favour of the 1st respondent and that he had paid a part of sale price in advance, a sum of Rs.32 lakhs, that respondents has filed a suit as O.S.No.954 of 2009 before the Principal Sub Court, Thrissur against the 2nd respondent as the sole defendant. In that suit, 1st respondent moved an application for interim attachment of the above said property covered by the sale deed executed in favour of the present petitioner. The court below has granted an interim order of attachment and it continues to be in force. Petitioner has moved Ext.P1 application for lifting that attachment and it awaits consideration. Meanwhile, the 1st respondent has filed another petition to declare the 2nd respondent as an insolvent, in which, present petitioner has been impleaded as the 2nd respondent. According to the petitioner, he is a bona fide purchaser without notice of the prior agreement of sale purported to have been made in favour of the plaintiff in O.S.No.954 of 2009 by the 2nd defendant. In the insolvency proceedings on receiving notice, petitioner, the 2nd respondent in that petition, has moved an application for injunction to restrain the 1st respondent in that petition (2nd respondent in the present writ petition) from alienating another property WPC.37235/09 3 belonging to him. The 2nd respondent is taking hasty steps to alienate that property as well, and if that is done, injury would be caused to the petitioner, was his case for seeking that discretionary relief. In the writ petition, petitioner seeks for issue of direction to the Principal Sub Judge, Thrissur to dispose of his Ext.P1 application moved in O.S.No.954 of 2009 and also Ext.P2 application moved in the insolvency proceedings I.P.No.12 of 2009 as expeditiously as possible. 3. Notice given, the respondents have entered appearance. I heard the counsel on both sides. The only relief canvassed at the time of hearing by the learned counsel for the petitioner is for issue of direction to the court below to dispose of Exts.P1 and P2 applications mentioned in the writ petition expeditiously, and till then, to retain the prohibitory order of injunction passed by this Court while admitting the writ petition. The learned counsel for the 1st respondent has no objection to the relief so canvassed, but, it is objected to by the counsel appearing for the 2nd respondent. It is submitted by the learned counsel for the 2nd respondent that the sale in favour of the petitioner was on account of the default and WPC.37235/09 4 breach of contract committed by the 1st respondent and further it was a distress of sale as he was pressed with liability due to several creditors. He is also constrained to sell his other properties also in view of the pressing liabilities against him is the submission of the counsel. So far as the expeditious disposal of Ext.P1 application moved by the petitioner in the suit, it is submitted, the 2nd respondent has no objection. With respect to Ext.P2 application it is submitted that the prohibitory order of injunction passed by this Court may not be continued. The learned counsel for the 2nd respondent seeks for a direction to the court below for lifting the attachment on his furnishing of security for the suit claim in O.S.No.954 of 2009. It is open to the petitioner to furnish security for the suit claim, and needless to point out, if that security is found satisfactory, the court has to pass appropriate orders in accordance with law. Considering the facts and circumstances presented and the submissions made, I find that the question whether the petitioner is entitled to a prohibitory order of injunction in the insolvency proceedings has to be determined by the court before which the insolvency petition is pending, but, in the given facts of the case, till such WPC.37235/09 5 consideration, it is found that the prohibitory order already passed by this Court has to remain in force. But I make it clear that the order so passed by this Court shall not have any reflection in disposing of Ext.P2 application on merits and it has not be done in accordance with law. Subject to the above observations, the learned Sub Judge, Thrissur is directed to dispose of Ext.P1 application in the suit O.S.No.954 of 2009 and also Ext.P2 application in I.P.No.12 of 2009 as expeditiously as possible at any rate, within one month from the date of receipt/production of a copy of this judgment. Handover a copy of the judgment to the counsel on both sides forthwith and send a copy of the judgment to the court concerned forthwith. S.S.SATHEESACHANDRAN JUDGE prp