IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 16TH NOVEMBER 2010 / 25TH KARTHIKA 1932 OP(C).NO. 712 OF 2010(O) ------------------------------------ OS.2/2007 OF SUB COURT, PERUMBAVOOR PETITIONER: ------------------- PRASAD PUNNOOSE,S/O.M.J.PUNNOOSE MANGALAM HOUSE,ASHRAMAM ROAD, KALADY,ERNAKULAM DISTRICT BY ADV. SRI.KURIAN ANTONY EDASSERY SMT.ANN EMIL JOSEPH SRI.M.RETHEESH RESPONDENT(S): ------------------------- 1. M.P.CHERIAN, S/O.M.J.PUNOOSE, MANGALM HOUSE,ALATTUCHIRA P.O., KODANAD,ERNAKULAM DIST 2. M.P.JACOB,S/O.M.J.PUNNOOSE MANGALM HOUSE,CHITTOOR HOUSE ERNAKULAM 3. M.P.PUNNOOSE,S/O.M.J.PUNNOOSE MANGALAM HOUSE,VANDANMENDU,IDUKKI 4. AMEENA JACOB,W/O.M.P.JACOB MANGALAM HOUSE,CHITTOOR ROAD, ERNAKULAM 5. SINDHU THOMAS, D/O.M.P.JACOB, MANGALM HOUSE,CHITTOOR ROAD, ERNAKULAM 6. THE OFFICER RECEIVER, ADDL.DISTRICT COURT, NORTH PARAVUR ADV. SRI.V.J.JOSEPH FOR R1 SMT.M.V.LIGI FOR R1 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 16/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== O.P(C) No.712 of 2010 ==================================== Dated this the 16th day of November, 2010 J U D G M E N T Respondent Nos.1, 2, 4 and 5 appear through counsel. Notice to other respondents is dispensed with in view of the order I propose to pass in this petition. 2. Fight is between the brothers over an extent of 101 acres of land mostly planted with rubber. It appears that there was some sort of agreement between the parties except petitioner as regards division of the property. Petitioner, claiming that he is not a party to such agreement filed O.S. No.295 of 1992 in the court of learned Sub Judge, North Paravur (later transferred to the court of learned Sub Judge, Perumbavoor and renumbered as O.S. No.2 of 2007) for specific performance of an agreement for partition. In the year 1996 a Receiver was appointed for the suit property and as per the decision of this Court in C.R.P. No.1425 of 1995 and connected cases the Receiver was to have only nominal possession of the property. Right to take yield from the property was to be auctioned among the parties to the litigation. Property was divided into five plots and the right to take yield was being auctioned among the O.P(C) No.712 of 2010 -: 2 :- sharers. From 1997 onwards such auction was being conducted (except during 2007-08 when according to the petitioner, the Receiver directly took yield from the property and proceeds were deposited in court). In the auction held in November, 2008 petitioner-plaintiff was the successful bidder for plot Nos.1 to 4 while respondent No.2 was the successful bidder for plot No.5. Auction was confirmed. After some time petitioner learnt that he was a loser in that the trees in plot Nos.1 to 3 were not capable of giving expected yield since it has already been extracted by persons who were taking yield prior to the auction held in November, 2008. Petitioner learnt that the rubber trees have become useless and it is at the stage of giving nil yield. An Advocate Commissioner with the assistance of an Expert from the Rubber Board inspected the property on 24.07.2008 and submitted Exts.P3 and P4, reports. In the meantime respondent No.2 filed application for issue of cheque. On that application the court ordered re-auction of plot Nos.2 and 3. Respondent No.2 challenged that order in W.P(C) No.27256 of 2009 in this Court. This court set aside the order and remitted the matter to the court below for fresh decision. Respondent No.1 filed I.A. No.788 of 2010 to direct petitioner to deposit in court the balance bid O.P(C) No.712 of 2010 -: 3 :- amount since petitioner had paid only the first installment for plot Nos.1 to 4. Petitioner opposed I.A. No.788 of 2010 contending that on account of certain tactics (allegedly) adopted by the contesting respondents he had no occasion to enter plots No.1 to 4 before the auction was confirmed in his favour and it is only after confirmation of the auction and entrustment of plot Nos.1 to 4 to him that he learnt about the real situation of the trees situated therein. He contended that he is not liable to pay the balance bid amount. Learned Sub Judge allowed I.A. No.788 of 2010 vide Ext.P8, order which is under challenge in this petition. Learned counsel for petitioner contends that Ext.P8, order dated 28.09.2010 directing petitioner to deposit the balance bid amount is unsustainable as it is without reference to Exts.P3 and P4, reports and in the circumstances the proper course open to the court was to exonerate petitioner from liability to deposit balance bid amount and if necessary conduct re-auction of plot Nos.1 to 4. It is also contended by learned counsel that at any rate there were such defaults from respondent Nos.1 and 2 also on prior occasions, that defaulted amount has not been deposited by them, if the audited account is called for, the default could be evidenced by such report and in that case there is no reason why O.P(C) No.712 of 2010 -: 4 :- petitioner should be directed to deposit the balance amount at this stage. At the time of passing the decree for specific performance it is open to the court to adjust the amounts payable between the parties. Learned counsel for respondent Nos.1, 2, 4 and 5 contend that this petition is without any merit and that it is incorrect to say that respondent Nos.1 and 2 defaulted payment of the bid amount on prior occasions. It is also the submission of learned counsel that if at all any such amount is due from respondent Nos.1 and 2 it is open to the petitioner to file appropriate application to direct them deposit the amount in the court below. Learned counsel brought to my attention Ext.P5, judgment of this Court dated 22.03.2010 in W.P(C) No.27256 of 2009. It is pointed out that exactly the very same contentions raised in this petition were raised by petitioner as respondent No.1 in W.P(C) No.27256 of 2009 and those contentions were rejected by this Court and hence there is no question of reopening the same issue again. 3. It is stated by learned counsel for petitioner that first installment of the bid amount for plot Nos.1 to 4 has been deposited in the court below and information given to him is that certain other amount concerning plot Nos.1 and 4 have also been O.P(C) No.712 of 2010 -: 5 :- deposited in the court blow. Now the question is whether at this stage and in the light of the previous proceeding it is necessary for this Court to interfere with the auction held in November, 2008 and exonerate petitioner from depositing the bid amount. It is seen from Ext.P5, judgment of this Court in W.P(C) No.27265 of 2009 that the whole issue was raised before this Court including liability of petitioner to pay the balance bid amount for the reason of lack of yield from the rubber trees in plot Nos.1 to 3 and in the light of Exts.P3 and P4, reports. This Court, referring to that contention of petitioner (as respondent No.1 in W.P(C) No.27265 of 2009) observed in paragraph 7 of the judgment thus: “Even assuming what the Commissioner's report says is true, going by the various orders, it is extremely doubtful whether a re-auction could be ordered, as has been done by the court below. The plaintiff in the suit bid for item Nos.1 to 4 with open eyes and later, he could not be heard to say that since he could not derive any income from the property, he is not liable to pay the subsequent installments.” (emphasis supplied) O.P(C) No.712 of 2010 -: 6 :- The contention canvassed by the petitioner has already been raised though in a separate proceeding and found against by this Court. Judicial discipline and propriety requires me to accept and follow that finding. Hence I am unable to entertain the contention raised by the petitioner based on Exts.P3 and P4, reports. Petitioner has to pay the balance bid amount due from him. 4. Petitioner has a contention that respondent Nos.1 and 2 have defaulted payment of bid amount on prior occasions. I make it clear that if there is any such default it is open to the petitioner to take necessary steps in the court below as provided under law to direct respondent Nos.1 and 2 to deposit such amount. 5. Learned counsel for petitioner requested time to deposit the balance amount since this Court is not inclined to accept the contention of petitioner as to his liability to deposit the balance amount. Learned counsel states that even the first installment was paid by the petitioner on availing loan and he is not in a position to raise the entire amount in lump. I have heard learned counsel for respondent Nos.1, 2, 4 and 5 in this regard. O.P(C) No.712 of 2010 -: 7 :- Learned counsel contends that petitioner has been in possession of the property for quite some time and respondents are entitled to get their share in the bid amount to be deposited by petitioner. Having regard to the facts and circumstances of the case and taking into account the views expressed by learned counsel for respondent Nos.1, 2, 4 and 5, I am inclined to grant three months’ time to the petitioner from 01.01.2011 to deposit the balance amount payable by him. 6. The suit though renumbered in the year 2007 was filed in the year 1992. Still it has not progressed much except auctioning and re-auctioning of the plots among the sharers. There must be an end to this litigation. I am told that several rounds of mediations had taken place but without any result. If that be so, parties must go for trial and get a verdict on the contentious issues. Counsel on both sides stated that the suit can be posted for trial in the list. Hence I direct the learned Sub Judge to dispose of the suit within a period of six months from the date of receipt of a copy of this judgment. O.P(C) No.712 of 2010 -: 8 :- Resultantly, this petition is dismissed. But petitioner is granted three months’ time from 01.01.2011 to deposit the balance bid amount in the court below subject to the following conditions. (i) Petitioner shall deposit not less than `.1,00,000/- (Rupees One lakh only) on or before 10.01.2011. (ii) Petitioner shall deposit yet another sum of less than `.1,00,000/- (Rupees One lakh only) on or before 10.02.2011. (iii) Petitioner shall deposit the entire balance amount within the period of three months granted hereby. (iv) In case of default in payment of any installment as stated above or the entire amount is not deposited within the time stated above it will be open to the court below to take necessary steps for O.P(C) No.712 of 2010 -: 9 :- realisation of the amount due. Learned Sub Judge is directed to dispose of the suit as early as possible and at any rate within six months from the date of receipt of a copy of this judgment. THOMAS P. JOSEPH, JUDGE. vsv