IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 7TH APRIL 2011 / 17TH CHAITHRA 1933 OP(C).No. 700 of 2011(O) OS.NO.92/2009 OF SUB COURT, MANJERI PETITIONERS/DEFENDANTS ------------------------------------------ 1. DR.SUPRIYA MENON, W/O.DR.SETHUNATH, PUTHENKOVILAKAM HOUSE, NILAMBUR AMSAM DESAM, NILAMBUR TALUK. 2. DR.SREEKUMAR SUKUMAR,SREESHYLAM HOUSE, PATHIYARAKKARA, VADAKARA AMSOM DESAM, VADAKARA TALUK. 3. INDHU SREE KUMAR, W/O.DR.SREEKUMAR SUKUMAR -DO- 4. M.P.RAJAGOPAL, S/O.LATE KRISHNAN NAIR, PUTHENKOVILAKAM HOUSE, NILAMBUR AMSOM DESAM, NILAMBUR TALUK. (POWER OF ATTORNEY HOLDER OF DEFENDANTS 1 TO 3). 5. GEETHA RAJAGOPAL, W/O.RAJAGOPAL, PUTHENKOVILAKAM HOUSE, NILAMBUR AMSOM DESAM, NILAMBUR TALUK (POWER OF ATTORNEY HOLDER OF DEFENDANTS 1 TO 3). BY ADV. SRI.H.BADRUDDIN SMT.B.SHAMEERA RESPONDENT: PLAINTIFF ------------------------ M.P.KUNHAMMED KUTTY, S/O.MUHAMED KUNHI (LATE), SEO GROUP, MANJERI AMSOM AND KARUVAMBARAM DESAM, MALAPPURAM DISTRICT, PIN 676123. BY ADV. SRI.BABU S. NAIR THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 07/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF THE PLAINT. EXT.P2 TRUE COPY OF THE WRITTEN STATEMENT COUPLED WITH THE COUNTER CLAIM FILED BY THE DEFENDANTS. EXT.P3 TRUE COPY OF THE APPLICATION FILED BY THE PLAINTIFF ON 7.4.2009. EXT.P4 TRUE COPY OF THE CONTRACT BETWEEN THE PLAINTIFF AND THE DEFENDANTS. EXT.P5 TRUE COPY OF I.A.NO.1710 OF 2010. EXT.P6 TRUE COPY OF THE REVIEW APPLICATION OF THE DEFENDANTS. EXT.P7 TRUE COPY OF APPLICATION FILED BY THE PLAINTIFF IN THE COURT BELOW FOR APPOINTING A COMMISSIONER. EXT.P8 TRUE COPY OF THE JUDGMENT DATED 9.12.2010 IN O.P.(C) NO.1061 OF 2010. EXT.P9 TRUE COPY OF I.A.NO.195/2011 IN O.S.NO.92/2009 FILED BEFORE THE COURT BELOW. EXT.P10 TRUE COPY OF THE ORDER DATED 20.2.2010 IN I.A.NO.832 OF 2009. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ O.P.(C). NO. 700 OF 2011 O ------------------------------------------------------ Dated this the 7th day of April, 2011 JUDGMENT The petitioners are the defendants in O.S.No.92 of 2009 on the file of the Court of the Subordinate Judge of Manjeri. The suit was filed by the respondent herein for realisation of a sum of `20,53,324/-. There was a transaction between the plaintiff and the defendants in respect of a cinema theatre. Disputes arose between them. The plaintiff claims the amount on account of the said transaction. 2. The defendants filed Ext.P2 written statement and made a counter claim for a sum of `8,29,079/- with interest at 12% per annum. 3. The plaintiff filed I.A.No.832 of 2009 for attachment before judgment of the cinema theatre and the machinery therein. An interim order was passed by the court below in I.A.No.832 of 2009. The exact nature of the order is not known to both parties. O.P.(C) NO.700 OF 2011 :: 2 :: 4. While so, the defendants filed applications before the court below to lift the attachment. I.A.No.1710 of 2010 was filed by the defendants to lift the attachment after allowing the defendants to produce bank guarantee for `12,24,244/-. That figure was arrived at after deducting the counter claim amount from the plaint claim. 5. Sri.Babu S.Nair, learned counsel appearing for the respondent submitted that the court below directed the defendants to furnish bank guarantee for the entire plaint claim, interest and costs, as a condition for lifting the attachment. It is also submitted by Sri.Babu S.Nair that I.A.No.2170 of 2010 was filed by the defendants to review the order in I.A.No.1710 of 2010. It is further submitted by him that since no orders were passed in I.A.No.2170 of 2010, O.P. (C) No.1061 of 2010 was filed by the defendants. 6. O.P.(C) No.1061 of 2010 was disposed of by this Court as per Ext.P8 judgment dated 9.12.2010. In Ext.P8 judgment, it was held thus: “2. It is not clear whether the learned Sub Judge has made the conditional order of attachment absolute in which case that being an order under Rule 6 of Order O.P.(C) NO.700 OF 2011 :: 3 :: XXXVIII of the Code of Civil Procedure (for short, “the Code”) that order is appealable under Order XLIII Rule 1 (q) of the Code. If that is the situation, remedy available to the petitioner is to challenge that order in appeal and seek permission of the appellate court to furnish bank guarantee as now offered for the entire plaint claim, interest and cost. 3. If on the other hand learned Sub Judge has not passed any order making the conditional order of attachment absolute and Ext.P3, application is still pending it is open to the petitioners to request learned Sub Judge to lift the attachment on furnishing bank guarantee for the entire plaint claim, interest and cost. If any such request is made, learned Sub Judge shall consider the request. Learned Sub Judge shall expedite disposal of Ext.P3, application if it is still pending disposal”. 7. Thereafter, Ext.P9 application dated 17.1.2011 (I.A. number not known) was filed by the defendants to permit them to withdraw the bank guarantee furnished by them to enable them to encash the same. In Ext.P9 it is stated that there was a mediation between the parties. There was an agreement to settle the matter through mediation by the parties and on the basis of that agreement, O.P.(C) NO.700 OF 2011 :: 4 :: the Court directed the parties to appear before the Mediation Centre on 19.1.2011. In that background the defendants stated that they may be permitted to withdraw I.A.No.1710 of 2010 and I.A.No.2170 of 2010. They also prayed for withdrawing the bank guarantee to enable them to re-present the same before bank and to encash the same. The counsel on both sides submitted that Ext.P9 application was allowed, but the bank guarantee was not taken back by the defendants. 8. The court below passed Ext.P10 order dated 20.2.2010 in I.A.No.832 of 2009, which reads as follows: “This petition filed under order 38 rule 5 of the Code of Civil Procedure. 2. Taken up today. This application shall be heard along with the suit. Attachment shall continue till the disposal of the suit. Application is closed.” 9. The defendants filed this Original Petition for the following reliefs: O.P.(C) NO.700 OF 2011 :: 5 :: “i) To issue a direction to the Court of Sub-ordinate Judge at Manjeri to allow the petitioners to re- deposit amount of Rs.20,75,000/- by cash for lifting the attachment before judgment, so as to permit them to defend the suit in accordance with law and to comply such and other further directions of the Court below. ii) To issue a direction to the Court of Sub-ordinate Judge, Manjeri to lift the attachment before judgment in OS 92/2009 immediately on deposit of Rs.20,75,000/- as required in Ext.P3 of the plaintiff in pursuance of Order Rule of Code of Civil Procedure. iii) To grant such other and further reliefs that are warranted and deemed fit by the .” 10. The reliefs as such cannot be granted. The petitioners originally offered to deposit the amount, the plaint claim minus the counter claim amount. The Court did not allow that. The Court directed the defendants to furnish bank guarantee for the entire plaint claim, interest and costs. That was done by the defendants. They made application to lift the attachment. Later, on an agreement to have a mediation, the defendants sought to withdraw O.P.(C) NO.700 OF 2011 :: 6 :: all the applications for lifting the attachment. That application was allowed. As such, there is no application pending before the lower court to lift the attachment. However, it is submitted that the bank guarantee for the entire plaint claim is available before Court. In these circumstances, if the petitioners want the attachment to be lifted, they have to make an application. If the petitioners make an application for lifting the attachment, the court below shall consider the same on the merits notwithstanding the order dated 20.2.2010 directing the application for attachment before judgment to be posted along with the suit. If the defendants furnish bank guarantee for the entire plaint claim, interest and costs, the court below shall consider the application for lifting the attachment expeditiously and, at any rate, within a period of one month from the date of filing the application. The Original Petition is disposed of as above. (K.T.SANKARAN) Judge ahz/