IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 19TH AUGUST 2010 / 28TH SRAVANA 1932 CRP.No. 448 of 2010() --------------------- AGAINST THE ORDER IN IA 1500/2010 IN OS.121/2009 of II ADDL.SUB COURT,ERNAKULAM .................... REVN. PETITIONER/1st PETITIONER: --------------------- SHYAMA VARNA RESORTS PVT. LTD EL/W/XLI/22/AMC SEALAP SHIMMERS BEACH ROAD, ALAPPUZHA-688012 REP. BY Dr. V.S.SUDHAKARAN NAIR S/o. M P VELAPPAN NAIR DIRECTOR, NOW RESIDING AT SUMATHI NIVAS CHIRAYINKIZHU, THIRUVANANTHAPURAM BY ADV. SRI.C.S.ULLAS RESPONDENT: --------------- Dr. P SAMUEL GEORGE S/o. C P SAMUEL PEEDIYAKKAL HOUSE INDUSTRIAL NAGAR P O CHANGANASSERY, KOTTAYAM DISTRICT-683 134 THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- C.R.P.No.448 of 2010 --------------------------------------- Dated this 19th day of August, 2010 ORDER Defendants in O.S.No.121 of 2009 of the court of learned Additional Sub Judge-II, Ernakulam are the petitioners before me challenging the order dated 28-05-2010 dismissing I.A.No.1500 of 2010. Respondent filed the suit for recovery of money based on a demand promissory note allegedly executed by petitioners. He claimed that he formed a private limited company with himself as Chairman. Petitioner No.2 offered to be a partner with him and arrange loan from Singapore at cheaper rate of interest. Petitioner No.2 made respondent believe that he is the managing director of petitioner No.1, a company. Petitioner No.2 demanded Rs. One Crore as processing fee (to obtain loan as above stated) and requested respondent to transfer the said amount in the name of one Radhakrishnan. Respondent transferred the amount on 17-06-2008. The amount was realised by the petitioners. In the plaint, it is stated that amount was encashed by petitioners through their 'benami' account. Respondent learned that Radhakrishnan (to whose account amount was transferred by respondent) was a “fake person” created by petitioners. It is also his case that to discharge C.R.P.No.448 of 2010 : 2 : liability petitioners executed a demand promissory note and based on that, he sued petitioners for realisation of the amount with interest. Petitioners filed I.A.No.1500 of 2010 contending that the suit is not maintainable since even as per plaint averments it is a benami transaction which is hit by Section 4 of the Benami Transactions (Prohibition) Act, 1988 (for short, “the Act”). Petitioners wanted the suit to be dismissed at threshold for the said reason. That application was opposed by respondent where he denied that there was any such benami transaction. Learned Sub Judge found no substance in the contention raised by petitioners and dismissed I.A.No.1500 of 2010. Learned counsel contends that in the plaint it is specifically stated that it is a benami transaction and hence the suit itself is not maintainable. 2. I am afraid, contention of learned counsel lacks merit and substance. I have stated above what the plaint averments in short, are. What respondent stated is that as requested by petitioners he transferred the amount from his account to the account of one Radhakrishnan who was later found to be a fake person created by petitioners. True, the word “benami” is incidentally used in the plaint but that does not make the transaction a benami transaction as defined in the Act. On going through the plaint averments, I am unable to uphold contention of C.R.P.No.448 of 2010 : 3 : petitioners that the transaction as pleaded by respondent is a benami transaction coming within the mischief of Section 4 of the Act and hence the suit is not maintainable. There is no merit in the contention raised and hence learned Sub Judge is correct in dismissing I.A.No.1500 of 2010. This revision petition is therefore dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-