IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 16TH FEBRUARY 2009 / 27TH MAGHA 1930 RFA.No. 100 of 2009() --------------------- AGAINST THE ORDER DATED 04/02/2009 IN IA.4280/2008 IN OS.889/2008 of PRINCIPAL SUB COURT,KOLLAM .................... APPELLANT/FIRST RESPONDENT ---------------------------------------------- JOHNSON.G.OOMMEN, S/O.LATE SRI.GHEE VARGHESE OOMMEN, AGED 44 YRS, RESIDING AT MOUNT CARMEL HOUSE, PUTHOOR, KOLLAM M/S.ST.GREGORIOUS CASHEW FACTORY, PUTHOOR. BY ADV. SRI.P.B.SURESH KUMAR SRI.LEO GEORGE RESPONDENT(S): CLAIMANT & SECOND RESPONDENT ------------------------------------------- 1. M/S.BEFFY CASHEW COMPANY,CHANNAPPETTA.PO KOLLAM, REPRESENTED BY ITS PROPRIETOR, BENNY GEORGE. 2. M/S.EISEN & BROTHERS AND PVT.LTD. 108,MIDDLE ROAD, #05-02,BRIGHT CHAMBERS, SINGAPORE-188967. ADV. SRI.K.SUBASH CHANDRA BOSE FOR R1 SRI.K.J.JOMSON FOR R1 THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 16/02/2009, ALONG WITH R.F.A.No.101/2009 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: KURIAN JOSEPH & S.S.SATHEESACHANDRAN, JJ. ------------------------------------------------- R.F.A.Nos.100, 101, 102, 103, 104 & 105 of 2009 -------------------------------------------------- Dated this the 16th day of February, 2009 JUDGMENT Kurian Joseph,J. Appeals admitted. Sri.K.Subashchandra Bose takes notice for the respondents. In view of the urgency in the matter and having regard to the perishable nature of the goods these appeals are disposed of today itself. 2. The issue pertains to the claim made by the first respondent in the appeals for release of the cashew nuts, which have been attached in O.S.Nos.888/2008, 889/2008 and 890/2008 on the file of the Principal Sub Court, Kollam. By the impugned orders the attachment has been lifted and hence the appeals. 3. In the nature of the order we propose to pass in these appeals we do not think that we need go into the merits of the case in detail. Evidently the claim petitioners had not produced any materials before the court below. Under Rule 8 of Order 38, there has to be an adjudication of the claim. It is the mandatory requirement that such claims have to be adjudicated upon in the manner provided for adjudication of the claims to the the property attached in execution of R.F.A.Nos.100, 101, 102, 103, 104 & 105 of 2009 -:2:- the decree for payment of money. That procedure is prescribed under Order 21 Rule 58 wherein it is provided that all questions relating to right, title and interest in the property attached should be determined by the court on adjudication of the claim made in the petition while dealing with claim petitions. As already observed by us, the claim petitioners have not produced any materials before the court so as to establish their right and title. According to the learned counsel for the claim petitioners (respondents), they had already produced those materials before the court below. That is disputed by the learned counsel for the appellant. Be that as it may, the order does not reflect any reference to such materials produced by the claim petitioners before the court below. Learned counsel for the claim petitioners pray for an opportunity to produce those materials to substantiate their case before the court below. It is prayed that in view of the perishable nature of the goods and in view also of the fact that the claim petitioners are suffering demurrage to the tune of Rs.12,000/- per day, the matter may be directed to be disposed of expeditiously. 4. Having regard to the various contentions and submissions made by the counsel on both sides we are of the view that the orders under appeal are to be set aside and the court below is to be directed R.F.A.Nos.100, 101, 102, 103, 104 & 105 of 2009 -:3:- to dispose of the matter afresh on the basis of the evidence on the claim, as provided under Order 38 Rule 8 CPC. Accordingly we set aside the orders under appeal and remit the matter to the court below. We make it clear that we are not expressing any opinion as to the merits of the contentions raised by the parties and all those questions are left open. The parties shall appear before the court below on 21-2-2009 and whatever materials the claim petitioners intend to produce, they shall produce on that day. The trial court shall adjudicate on the claim in accordance with law and dispose of the interlocutory applications within another ten days. It is made clear that the interim order of attachment originally granted by the court below will stand revived and it will continue till fresh orders are passed by the court below. (KURIAN JOSEPH, JUDGE) (S.S.SATHEESACHANDRAN, JUDGE) ahg. KURIAN JOSEPH & S.S.SATHEESACHANDRAN, JJ. --------------------------- R.F.A.Nos.100, 101, 102, 103, 104 & 105 of 2009 ---------------------------- JUDGMENT 16th February, 2009