IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 26TH FEBRUARY 2009 / 7TH PHALGUNA 1930 WP(C).No. 32766 of 2007(A) -------------------------- OS.89/2004 of PRINCIPAL SUB COURT,KOCHI .................... PETITIONER: --------------- INDIAN BANK, A BODY CORPORATE HAVING ITS HEAD OFFICE AT 66,RAJAJI SALAI, CHENNAI AND ITS BRANCH OFFICE AT MATTANCHERRY COCHIN-682 002 NOW OFFICE AT VYTTILA COCHIN 682 019) REPRESENTED BY ITS BRANCH MANAGER BALAKRISHNAN.R,S/O.C.P.RAGHAVA KURUP,AGED 49. BY ADV. SRI.S.SREEKUMAR RESPONDENTS: --------------- 1. ADARSH, ANAND,S/O.T.SUDHAKAR RESIDING AT SUVIDHA H.NO.9/1058, MANTHARA ROAD,COCHIN-682 002. 2. DHANANJAY.V.,(MINOR)S/O.T.VIDYASAAGAR REPRESENTED BY HIS GUARDIAN T.VIDYASAAGAR C-BLOCK, 6D CHAKKOLAS HABITAT,THEVARA, COCHIN-682 013. ADV. SRI.V.V.ASOKAN FOR R2 SMT.S.AMINA FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No.32766/2007 APPENDIX PETITIONER'S EXTS: EXT.P1 TRUE COPY OF AGREEMENT OF GUARANTEE DATED 27/12/2001 EXECUTED BY THE IST RESPONDENT. EXT.P2 TRUE COPY OF LEASE DEED NO.5425 OF 2003 DATED 10/11/2003 EXT.P3 TRUE COPY OF PLAINT IN O.S.NO.89/2004 OF THE SUB COURT, KOCHI. EXT.P4 TRUE COPY OF WRITTEN STATEMENT. EXT.P5 TRUE COPY OF I.A.NO.1147/2004 OF SUB COURT, KOCHI. EXTP.6 TRUE COPY OF COUNTER AFFIDAVIT FILED BY THE IST RESPONDENT. EXT.P7 TRUE COPY OF THE ORDER IN I.A.NO.1147/2004 IN O.S.NO.89/2004 OF SUB COURT, KOCHI DATED 18/8/2007. HARUN-UL-RASHID,J. --------------------------- W.P.(C).NO.32766 OF 2007 ---------------------------- DATED THIS THE 26TH DAY OF FEBRUARY, 2009 JUDGMENT Writ Petitioner is the lst defendant in a suit for realisation of rent and for injunction. Ist respondent is the plaintiff in O.S.No.89/2004 on the file of the Sub Court, Kochi. 2. M/s. South India Hill Produce Company availed credit facilities from the petitioner-Bank. The lst respondent herein stood as a guarantor for the said loan transaction and executed an agreement of guarantee dated 27/12/2001, which is a continuing guarantee and equitably mortgaged immovable property belonging to the respondents. Since the South India Hill Produce Company defaulted the loan amount, the petitioner-Bank filed O.A.No.531/2002 before the Debt Recovery Tribunal against the principal debtor i.e. M/s.South India Hill produce Company and the lst respondent herein, the only guarantor. The said O.A. was filed for realislation of Rs.13 and odd crores. The lst respondent -2- W.P.(C).No.32766/2007 guarantor is the 6th respondent in the said O.A. 2. Before the above-said loan transaction the Bank occupied the building situated in the property belonging to the lst respondent on rent. The petitioner Bank was in occupation of the building from 2000 and executed a lease deed on 10/11/2003. The lst respondent filed O.S.No.89/2004 before the Sub Court, Kochi as against the Bank and the 2nd respondent for realisation of rent from 1-2-2002 amounting to Rs.3,75,881.25 with future interest and costs and for a decree of injunction restraining the petitioner herein from crediting the rent towards the liability of South India Hill Produce Company. 3. According to the petitioner, the issue to be decided in the O.A. is whether by virtue of Clause 10 of Ext.P1 the petitioner is entitled to recover the entire liability from the lst respondent and the mortgaged property. It is also submitted that in the suit filed by the lst respondent as plaintiff the petitioner -3- W.P.(C).No.32766/2007 sets up Ext.P1 guarantee and therefore, the issue to be decided in the suit is also the enforceability and interpretation of Ext.P1. On the basis of the said reasons, the petitioner-Bank filed I.A.No.1147 of 2004 under Section 10 of the C.P.C. for stay of the suit filed subsequent to the said O.A. The Sub Court held that a situation contemplated by Section 10 of the Code of Civil procedure for stay of the suit is not available and hence the petition is dismissed. Ext.P7 is the order passed by the court below. The petitioner submitted that the matter in issue in the suit is directly and substantially the matter in issue in the O.A. pending before the Debt Recovery Tribunal, that the parties in the two cases are same and the court in which the suit is instituted, has competent jurisdiction to grant the relief claimed in the O.A. O.A.No.531/2002 filed by the petitioner-Bank is for realisation of Rs.13 and odd crores from the principal debtor and other defendants including the lst respondent, who is a guarantor. -4- W.P.(C).No.32766/2007 The suit O.S.No.89/2004 is filed by the lst respondent for realisation of rent due on the basis of the lease agreement. The suit and the OA are different proceedings based on different cause of actions. It cannot be said that the issues involved in the OA and in the subsequent suit are substantially the same. The interpretation of the guarantee agreement has nothing to do with the issues involved in the suit. The question as to whether the lst respondent is entitled to realisation of rent on the basis of the lease deed executed between the petitioner and the lst respondent, is the issue involved in the suit. It cannot be accepted for any reason that the suit and the OA pending before the different Forums on the basis of different cause of actions arise out of the same transaction and the cause of action for one party would be the defence of the other party in the other suit. Therefore, I am of the view that the findings entered by the court below holding that Section 10 of the C.P.C. is not attracted cannot be interfered -5- W.P.(C).No.32766/2007 with. 4. The learned counsel for the petitioner submitted that from 2002 onwards the amount of rent is adjusted towards the amount due from the principal debtor and the guarantor and therefore no payment is so far made. It is also submitted by the learned counsel that though the interpretation of Clause 10 of Ext.P1 agreement arises for consideration in both the cases, there is a chance of conflicting findings regarding the interpretation of Ext.P1 agreement. 5. In the facts and circumstances as stated above, an early disposal of O.A.No531/2002 will serve the ends of justice. Moreover OA.No.531/2002 is a matured case for trial. Therefore, I direct the Debt Recovery Tribunal, Ernakulam to try and dispose of OA.No.531/2002 within a period f six months from the date of receipt of a copy of this judgment. The suit O.S.No.89/04 pending before the Sub Court, Kochi shall be tried -6- W.P.(C).No.32766/2007 only after the disposal of OA.No.531/2002. Writ Petition is disposed of as above. The registry shall communicate a copy of this judgment to the Debt Recovery Tribuanal, Ernakulam and to the Sub Court, Kochi. HARUN-UL-RASHID, Judge. kcv.