IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 9TH JANUARY 2009 / 19TH POUSHA 1930 WP(C).No. 850 of 2009(A) ---------------------------------------- OS.60/2008 of PRL.S.C.,THALASSERY .................... PETITIONER: M/S.ICICI BANK, RAPG DIVISION, NEAR KOILY HOSPITAL, KANNUR REP. BY ITS DEBT RECOVERY MANAGER, SUNIL G.P BY ADV. SRI.KKM.SHERIF SRI.A.A.ZIYAD RAHMAN SRI.LAL K.JOSEPH SMT.SHEENA SAMUEL RESPONDENTS: 1. P.SABEENA, AGED 28 YEARS, W/O.C.K.ASHRAF, BAITHULNOOR PARAL, KUTHUPARAMBA, KANNUR. 2. C.K.ASHRAF, AGED 34 ASHRAF MANZIL, SREEKANDAPURAM TALIPARAMBA, KANNUR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- W.P.(C)No.850 of 2009 A -------------------------- JUDGMENT ICICI Bank is the petitioner. They instituted O.S.No.60/08 before the Sub Court, Thalassery for recovery of the amount due from the respondents, the amount being the advance given for purchase of a vehicle. In the suit, attachment before judgment of the vehicle so purchased was obtained and the vehicle attached was sold in court auction. It is submitted that the sale price of the vehicle is Rs.3,62,500/- and that is in deposit before the Sub Court, Thalassery. Petitioner moved Cheque Application No.389/08 seeking for an order for disbursement of the said amount and vide Exhibit P3 order, the court below dismissed the said application as being not maintainable at that stage, as no decree had been passed in favour of the petitioner. Hence this writ petition assailing Exhibit P3 order. WPC 850/09 2 2. It is submitted by counsel for the petitioner/plaintiff that in the event of at least the said amount, from out the total claim of Rs.6,77,853/-, being disbursed to the petitioner/ plaintiff, the burden on the respondents/defendants to pay interest on the entire amount will get diminished to the extent of the amount disbursed and that will benefit the respondents/defendants and that in any event, the petitioner/plaintiff is prepared to furnish bank guarantee for the amount, if the amount is permitted to be withdrawn. 3. The dismissal of the cheque application by the court below cannot be faulted as without a decree in favour of the petitioner/plaintiff, they have no right to withdraw the amount that is in deposit before court. But, however, if the respondents/defendants have no objection in disbursing that amount, certainly, the court can issue cheque for the said amount. It does not appear that objection or the willingness of the WPC 850/09 3 respondents/defendants was ascertained by the court below. Hence, I set aside Exhibit P3 order and remit Cheque Application No.389/08 in O.S.No.60/08 back to the court below for consideration as to whether the amount in deposit can be disbursed to the petitioner/plaintiff with the consent of the respondents/defendants. The question as to whether the amount can be allowed to be withdrawn on furnishing bank guarantee can be decided by the court below, as that claim had not been advanced earlier before the court below. With the above directions, I dispose of this writ petition. Petitioner, if so advised, may produce a copy of this judgment in the court below and seek for appropriate orders. Issue copy of this judgment to the counsel for the petitioner urgently. 9th January, 2009 (K.P.Balachandran, Judge) tkv