IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 1ST JUNE 2009 / 11TH JYAISHTA 1931 WP(C).No. 35107 of 2008(D) -------------------------------------- TOP.1000/2008 of DISTRICT COURT, ERNAKULAM OS.1176/2007 of I ADDL. MUNSIFF COURT.,ERNAKULAM .................... PETITIONER(S): ---------------------- MYLAADY WAREHOUSING PVT.LTD;A REGISTERED COMPANY, WITH ITS REG. OFFICE AT 38/197,MYLAADY HOUSE,VENNALA.P.O, KOCHI-682 028,REPRESENTED BY ITS MANAGING DIRECTOR, MRS.MARYKUTTY BABY,AGED 56 YEARS,W/O.BABY THOMAS, MYLAADY HOUSE,VENNALA.P.O,KOCHI-682 028,NOW AT CHANGANPUZHA CROSS ROAD,EDAPPALLY,KOCHI. BY ADV. MR.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) MR.A.R.DILEEP SMT.SURYA SASI RESPONDENT(S): ------------------------ 1. ICFAIAN FOUNDATION, HAVING ITS REGISTERED OFFICE AT 62,NAGARJUNA HILLS, HYDERABAD 500 082,REP. BY ITS REGISTRAR, SRI.V.R.SHANKARA, AGED 53 YEARS, S/O LATE MADHAVA RAO, R/O. 1-8-519/19, CHIKKADAPALLY, HYDERABAD. 2. THE ICFAI BUSINESS SCHOOL, IBS KOCHI, CHIRAKKAPALLY TOWERS, PUTHIYA ROAD, NH 47, BYPASS, PALARIVATTOM, COCHIN-25. 3. THE FEDERAL BANK LTD, A BANKING COMPANY WITH ITS REGISTERED OFFICE AT ALUVA AT BANK JUNCTION, ALUVA, REP.BY ITS MANAGING DIRECTOR. 4. THE FEDERAL BANK LTD, BROADWAY BRANCH, BROADWAY NORTH END, ERNAKULAM, REP.BY ITS MANAGING DIRECTOR. 5. SRI.ULAHANNAN, AGED ABOVE 52 YEARS, CHIEF MANAGER, THE FEDERAL BANK LTD, BROADWAY BRANCH, BROADWAY NORTH END, ERNAKULAM. R1 BY ADV. MR.M.AJAY R2 BY ADV. MR.SUNIL CYRIAC R3 TO R5 BY ADV. MR.MOHAN JACOB GEORGE, SMT.P.V.PARVATHI, SMT.REENA THOMAS, MR.L.RAM MOHAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 35107/2008-D APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN O.S.NO.176 OF 2007 ON THE FILE OF THE COURT OF THE 1ST ADDITIONAL MUNSIFF, ERNAKULAM. EXT.P2: COPY OF THE NOTICE DATED 08/10/2007. EXT.P3: COPY OF THE PLAINT IN O.S.NO.194/2008 BEFORE THE COURT OF PRINCIPAL SUB JUDGE, ERNAKULAM. EXT.P4: COPY OF THE T.O.P NO.1000/08 BEFORE THE COURT OF THE DISTRICT JUDGE, ERNAKULAM. EXT.P5: COPY OF THE OBJECTION FILED BY THE 1ST RESPONDENT IN T.O.P.NO.1000/08 BEFORE THE COURT OF THE DISTRICT JUDGE, ERNAKULAM. EXT.P6: COPY OF THE OBJECTION FILED BY THE 2ND RESPONDENT IN T.O.P.NO.1000/08 BEFORE THE COURT OF THE DISTRICT JUDGE, ERNAKULAM. EXT.P7: COPY OF THE ORDER DATED 29/09/2008 IN T.O.P.NO.1000/08 BEFORE THE COURT OF THE DISTRICT JUDGE, ERNAKULAM. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE Rs/ S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.35107 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 1st June, 2009 JUDGMENT The Writ Petition is filed under Article 227 of the Constitution of India seeking the following reliefs: 1. Set aside Ext.P7 order dated 29.9.2008 of the Court of the District Judge, Ernakulam dismissing Ext.P4 application. 2. Allow T.O.P.No.1000/08 on the file of the Court of the District Judge, Ernakulam; and 3. To pass such other writ direction or order as deemed fit. Petitioner is the plaintiff in O.S.No.1176/07 on the file of the 1st Additional Munsiff Court, Ernakulam. Suit was one for perpetual injunction to restrain the respondents from enforcing a bank gurantee given by the plaintiff and from releasing any amount by the respondents 3 to 5 on the basis of the bank guarantee to the first and second respondents. The petitioner as plaintiff has filed another suit against the very same respondents as O.S.No.194/08 before the Sub Court, Ernakulam seeking damages and other reliefs. The defendants in both the suits are one and same, who are the respondents in the present Writ Petition. Petitioner moved an application under Section 24 of the C.P.C. for transfer of the suit pending before the Additional W.P.C.No.35107/08 - 2 - Munsiff Court, Ernakulam to the Sub Court, Ernakulam for a joint trial of both the suits. The learned District Judge, after hearing both sides, dismissed the application vide Ext.P7 order. Correctness of the order passed by the learned District Judge is impeached by the petitioner as improper and illegal, and he seeks for setting aside that order and allowing the transfer of suit invoking the supervisory jurisdiction of this court under Article 227 of the Constitution of India. 2. I heard the learned counsel on both sides. A preliminary objection was raised by the learned counsel appearing for the respondents 3 to 5, the banks, that a Writ Petition questioning the correctness of the order passed by the learned District Judge in an application under Section 24 of the C.P.C. which can be exercised concurrently by the High Court as well, is not maintainable. I do not find any merit in the said objection. Even after a dismissal of the application under Section 24 of the C.P.C. by the District Court, a party to the proceedings can approach this court under Article 227 of the Constitution for redressal of his grievance. Perusing Ext.P7 order passed by the learned District Judge and hearing the submissions of the respective counsel, I find, there is no scope for interfering with the order refusing the transfer of the suit pending before the Munsiff W.P.C.No.35107/08 - 3 - Court, Ernakulam to Sub Court, Ernakulam as desired by the petitioner. It is admitted that the bank guarantee was enforced a day before the filing of the suit for injunction by the petitioner and, thus, the suit for injunction had become infructuous. Enforcement of the bank guarantee a day before the filing of the suit is not disputed by the learned counsel for the petitioner, but, it is contended that the enforcement of the bank guarantee was vitiated by fraud. Whatever that be, it is also brought to my notice that the suit pending on the file of the Sub Court is already listed for trial 4th of this month. Having regard to the facts and the circumstances involved, I find, there is no scope for ordering a joint trial of these suits especially when it is prima face shown that one of the suits sought to be jointly tried has become infructuous and the other already listed for trial. The Writ Petition is dismissed. srd S.S. SATHEESACHANDRAN, JUDGE