IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 6TH JANUARY 2009 / 16TH POUSHA 1930 WP(C).No. 395 of 2009(V) ---------------------------------------- OS.55/2008 of PRL.S.C.,THALASSERY .................... PETITIONER: M/S. ICICI BANK, RAPG DIVISION, NEAR KOILY HOSPITAL, KANNUR, REP. BY ITS DEBT RECOVERY MANAGER, SUNIL.G.P BY ADV. SRI.KKM.SHERIF SRI.A.A.ZIYAD RAHMAN SRI.LAL K.JOSEPH SMT.SHEENA SAMUEL RESPONDENTS: 1. P. SABEENA, AGED 28 YEARS, W/O.C.K. ASHRAF, BAITHULNOOR, PARAL, KUTHUPARAMBA, KANNUR. 2. C.K. ASHRAF, AGED 34, ASHRAF MANZIL, SREEKANDAPURAM, TALIPARAMBA, KANNUR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- W.P.(C)No.395 of 2009 V -------------------------- JUDGMENT Heard counsel for the petitioner. 2. Petitioner/plaintiff assails Exhibit P4 order, dismissing the cheque application filed by them in O.S.No.55/08 for disbursement of the sale proceeds of the vehicle sold after attachment before judgment in the suit. 3. It is submitted that the suit is not yet decreed. In the normal course, as observed by the court below, it is true that without obtaining a decree in the suit, petitioner/plaintiff is not entitled to file a cheque application for the amount. But, in the instant case, it appears that liability is there for the respondents/defendants to repay the sum and if the amount is not disbursed, naturally, interest will accrue also on the amount brought to court and the respondents/ defendants will be burdened to pay that interest as well. Further, counsel for the petitioner/plaintiff WPC 395/09 2 submits that petitioner is prepared to give bank guarantee for the amount in the event of cheque being issued, so that no loss or damage will be caused to the respondents/ defendants as well. 4. In view of the above submissions, I am of the view that Exhibit P4 order passed by the court below deserves to be set aside and Cheque Application No.388/08 filed by the petitioner/ plaintiff in O.S.No.55/08 is to be directed to be considered afresh by the court below. 5. In the result, I set aside Exhibit P4 order and direct the court below to consider the cheque application filed by the petitioner/plaintiff afresh hearing the counsel for the respondents/ defendants as well. In case the respondents/ defendants have no objection in issuing the cheque to the petitioner/plaintiff for the amount brought to court, cheque can be issued on such consent and without insisting for bank guarantee. If that is not possible, the court below may consider the WPC 395/09 3 feasibility of disbursing the amount accepting the bank guarantee. With the above directions, I dispose of this writ petition. Issue copy of this judgment to the counsel for the petitioner urgently so as to enable them to produce it before the court below and get appropriate orders. 6th January, 2009 (K.P.Balachandran, Judge) tkv