IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 19TH SEPTEMBER 2011 / 28TH BHADRA 1933 FAO.No. 252 of 2011 ------------------------------------- (AGAINST THE ORDER DATED 27.6.2011 IN IA.NO.4415/2010 IN OS.786/2010 of PRINCIPAL SUB COURT,KOLLAM) .................... APPELLANTS/RESPONDENTS - DEFENDANTS: -------------------------------------------------------- 1. K. KALARIAPPAN, S/O. KESAVAPILLAI, AGED 52, CHEKKOTTU KAYALVARATHU PUTHEN VEEDU, ASRAMAM, KOLLAM. 2. K. KOCHAPPAN PILLAI, S/O.KESAVAPILLAI, CHEKKOTTU KAYALVARATHU PUTHEN VEEDU, ASRAMAM, KOLLAM. BY SHRI S. SREEKUMAR, SENIOR ADVOCATE & ADV. SRI.P.MARTIN JOSE SRI.M.A.MOHAMMED SIRAJ SRI.P.PRIJITH SRI.ANEESH JAMES RESPONDENT(S): PETITIONER - PLAINTIFF: -------------------------------------- M.K. SUNDARAN PILLAI, SHOBHANA MANDIRAM, ASRAMAM, KOLLAM, PIN-691 001. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 19/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. ----------------------------------------- F.A.O.NO. 252 OF 2011 ------------------------------------------ Dated this the 19th September, 2011 JUDGMENT K.M. Joseph, J. This Appeal is directed against the order of the Principal Sub Court, Kollam, allowing the interlocutory application filed by the respondent/plaintiff in a Suit for specific performance, restraining the appellants by a temporary order of prohibitory injunction from executing or restraining any documents creating charge, lien or encumbrance in respect of the plaint property and also from altering the lie and nature of the above property and from committing mischief therein. F.A.O.NO.252 OF 2011 2 2. We heard Shri S. Sreekumar, learned senior counsel appearing for the appellants. 3. The case of the respondent/plaintiff was that the parties have entered into an agreement to sell and purchase the plaint schedule property, and that the appellants are attempting to wriggle out of the contract and they are not fulfilling the terms of the agreement. The appellants/defendants contended, inter alia, that there is no agreement for sale and the defendants approached the plaintiff for financial assistance and when the defendants borrowed Rs.16,50,000/= from the plaintiff, they were made to sign in blank papers which has been forged and created as an agreement for sale. Even assuming that there was such an agreement, it was the plaintiff who committed the breach by not arranging the balance sale consideration, it is contended. 4. The court below found, inter alia, that after spending about Rs.40 Lakhs which was the amount of advance, if the F.A.O.NO.252 OF 2011 3 property was gone out of the hands of the defendants, it was natural that the plaintiff would suffer irreparable injury and loss. Even if the plaintiff wants to recover the advance amount paid, he will not able to recover it if the property is alienated, it is found. 5. Learned senior counsel for the appellants would point out that the agreement is of the year 2007 and the Suit was filed only after a long delay and in fact the period stipulated in the agreement itself expired on 15.5.2008 and the notice was issued only on 23.12.2009 and the Suit was filed only on 4.11.2010. 6. After having heard the learned senior counsel for the appellants, we are not persuaded to interfere with the order impugned. But, at the same time, we feel that interest of justice would be subserved if the Suit itself is disposed of finally before the closure of the court for mid-summer vacation, 2012. Accordingly, we direct that the Principal Sub Court, Kollam shall take up the Suit and dispose it of finally before the closure of the Court for mid-summer vacation, 2012. We also make it clear that F.A.O.NO.252 OF 2011 4 the Principal Sub Court, Kollam will decide the matter untrammeled by any observations contained in the impugned order. The Appeal is disposed of as above. Sd/= K.M. JOSEPH, JUDGE Sd/= M.L. JOSEPH FRANCIS, JUDGE kbk. //True Copy// PS to Judge