IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 1ST JANUARY 2009 / 11TH POUSHA 1930 WP(C).No.23041 of 2008 (R) ---------------------------------- ARBOP.2/2008 of DISTRICT COURT, PALAKKAD .................... PETITIONER: --------------- M/S. HDFC BANK, FORMERLY CENTURION BANK OF PUNJAB LTD., THRISSUR BRANCH, REP. BY ITS MANAGER LEGAL SUMIT P. PRASAD. BY ADV. SRI.T.RAJESH RESPONDENT: ---------------- SWAMYNATHAN.T.S, S/O. SUBRAMANIAN, THERAYANGOD HOUSE, EZHIKKAD.P.O, MUNDUR, PALGHAT. ADV. SRI.I.DINESH MENON SRI.RENJITH B.MARAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/01/2009 ALONG WITH WPC NO.28867 of 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.23041 of 2008 (R) APPENDIX PETITIONER'S EXTS:- EXT.P1:- THE TRUE COPY OF THE ARBITRATION O.P.NO.2/08 OF DISTRICT COURT, PALAKKAD DT.14/12/07. EXT.P2:- TRUE COPY OF THE I.A. NO.6 OF 2008 IN ARBITRATION O.P. NO.2 OF 2008 DT.04/12/07. EXT.P3:- TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT. EXT.P4:- TRUE COPY OF THE ORDER IN I.A. NO.6 OF 2008 IN ARBITRATION O.P. NO.2 OF 2008 DT.26/03/08. EXT.P5:- TRUE COPY OF THE PETITION FILED BY THE RESPONDENT I.A.888/08. EXT.P6:- TRUE COPY OF I.A. NO.961/08 SEEKING MANDATORY INJUNCTION. EXT.P7:- TRUE COPY OF THE COMMON ORDER IN I.A.888 AND 961 OF 2008 DT.03/07/08 ARB.O.P.2/08. ..................... K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. Nos.23041 & 28867 of 2008 ------------------------------------------------ Dated this the 1st day of January, 2009 JUDGMENT The first of these petitions is filed by the creditor/HDFC Bank and the latter is filed by the debtor/Swamynathan. What is challenged in both the Writ Petitions is Ext.P7 (Ext.P6 in W.P.C.28867/08) common order passed by the District Judge, Palakkad on I.A.888/08 and I.A.961/08 in O.P.(Arb)No.2/08. As per I.A. 888/08, the debtor/Swamynathan advanced prayer to release the vehicle on executing a kachit in the event of its attachment and as per I.A.961/08, the prayer advanced by the creditor/Bank is for a direction to the respondent/Swamynathan to give back possession of the vehicle sought to be attached vide I.A.6/08. As per I.A.6/08 (Ext.P2), the creditor/Bank sought for a conditional order of attachment of a Tempo Minidor vehicle W. P. C. Nos.23041 & 28867 of 2008 -2- bearing registration No.KL-9-T-5122 in the event of the debtor not furnishing security for an amount of Rs.3,81,348/-. 2. It is submitted that the vehicle was removed from the jurisdiction of the District Court, Palakkad and therefore, attachment of the vehicle could not be effected. In the meanwhile, the order of attachment was kept in abeyance vide Ext.P4 order dt.26/03/08 on I.A.6/08 till 21/05/08 directing inter alia that in the meanwhile, the debtor shall furnish sufficient security for the arbitration claim involved in O.P.(Arb) No.2/08 including the interest and cost and in case of failure, the attachment shall stand revived. The debtor thereafter, filed Ext.P5 petition (I.A.888/08) seeking for a direction to release the vehicle on executing a kachit in the event of its attachment and the creditor/Bank filed I.A.961/08 for a direction W. P. C. Nos.23041 & 28867 of 2008 -3- being issued to the debtor to give back possession of the vehicle sought to be attached by an order of mandatory injunction. The District Judge vide Ext.P7 common order dt.03/07/08 on I.A Nos.888/08 and 961/08 ordered that the vehicle will be released after attachment on the debtor executing a kachit to the effect that he will pay Rs.10,000/- per month to the bank on or before the 15th of every month and that in the event of default of any one of the instalments the kachit will stand cancelled and the vehicle will be proceeded against and directing further, inter alia that the vehicle shall be produced before court as and when directed by the court. Counsel for the bank submits that even after the said common order not a pie is paid and therefore, a mandatory injunction be issued to the respondent/debtor to produce the aforesaid vehicle before the District Judge, W. P. C. Nos.23041 & 28867 of 2008 -4- Palakkad forthwith. Writ Petition No.28867/08 filed by the debtor is to set aside the common order dt.03/07/08 on I.A Nos.888/08 and 961/08. Counsel for the debtor submits that the Writ Petition is filed in view of the direction to make payment at the rate of Rs.10,000/- per month. All the same, he has no case that the amount ordered to be paid is excessive or that the petitioner is unable to pay the amount. There is no merit therefore, in Writ Petition No.28867/08. W.P.C No. 23041/08 deserves to be allowed directing the respondent/debtor to produce before the District Judge, Palakkad Tempo Minidor vehicle bearing registration No.KL-9-T-5122 positively within one week from today. 3. W.P.C. No.28867/08 is hence, dismissed and W.P.C. No.23041/08 is disposed of with direction to the respondent therein to produce before the District Judge, Palakkad, Tempo W. P. C. Nos.23041 & 28867 of 2008 -5- Minidor vehicle bearing Registration No.KL-9- T-5122 positively within one week from today. K.P.BALACHANDRAN, JUDGE kns/- W. P. C. Nos.23041 & 28867 of 2008 -6- K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C Nos.23041, 23049, 23046, 23011, 28866, 28867, 28869 & 28868 of 2008 ------------------------------------------------ Dated this the 19th day of December, 2008 ORDER Both sides submit that they have filed statements. According to the statements filed by the H.D.F.F Bank amount due from the respondent/Swamynathan will be Rs.14 lakhs and odd which is almost Rs.15 lakhs. According to Counsel for the respondent/Swamynathan as per his statement the amount due will be only Rs.10 lakhs, but he submits that probably the difference could be on account of adding of interest which he has not done in the statement filed by him. Counsel further submits that he may be given some time to deposit the amount. 2. It is worthy to note that as per order dt.01/12/08, he was directed to deposit an W. P. C. Nos.23041 & 28867 of 2008 -7- amount of Rs.10 lakhs positively on 04/12/08 and that order was not complied with and on 04/12/08, he submitted that no amount is deposited as according to him, only Rs.5 lakhs will be due to the Bank, but still that admitted Rs.5 lakhs was also not deposited. It was in the circumstances, that both sides were directed to file statement. The admitted amount of Rs.10 lakhs shall be deposited by the respondent/Swamynathan who is stated to be a fleet owner positively within one week from today. If not deposited the Bank shall be at liberty to seek for coercive actions according to law. Post on 01/01/09. K.P.BALACHANDRAN, JUDGE kns/- W. P. C. Nos.23041 & 28867 of 2008 -8- K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C Nos.23041, 23049, 23046, 23011, 28866, 28867, 28869 & 28868 of 2008 ------------------------------------------------ Dated this the 4th day of December, 2008 ORDER Counsel for the respondent/Sri.Swamy Nathan submits that as according to the respondent only Rs.5 lakhs will be due and not any amount in excess of that; the respondent has not made deposit of Rs.10 lakhs on 04/12/08 as directed by this Court in the order dt.01/12/08. However, the respondent has not deposited or paid even that Rs.5 lakhs. Both sides are directed to file detailed statement showing the amounts due and the amounts paid and as to what will be the balance according to them positively in one W. P. C. Nos.23041 & 28867 of 2008 -9- week. Post on 15/12/08. K.P.BALACHANDRAN, JUDGE kns/-