IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 26TH NOVEMBER 2009 / 5TH AGRAHAYANA 1931 WP(C).No. 34086 of 2009(O) -------------------------- AGAINST THE ORDER DATED 26/10/2009 IN IA 1082/2009 IN OS.147/2009 of ADDL.SUB COURT, NORTH PARAVUR .................... PETITIONER: --------------- ABDUL KHADER, S/O. AMMU, AGED 51 YEARS, MUNDAKKAMATTATH, MEZHUKATTIL, KEEZHMADU KARA, ALUVA WEST VILLAGE, ALUVA TALUK. BY ADV. SRI.VIVEK VARGHESE P.J. SRI.VARUGHESE M EASO SRI.P.J.VINOD JOSEPH SRI.TONE JOSEPH RESPONDENT: --------------- ABDUL RZAK, S/O. KUTTY, PERUMBATT, KEEZHAMAD KARA, ALUVA EAST VILLAGE, ALUVA TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 34086 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 26th November, 2009 JUDGMENT The Writ Petition is filed seeking mainly the following reliefs: 1. To issue a writ of certiorari or such other writ, order or direction quashing the order dated 26.10.2009 in I.A.No.1082 of 2009. 2. Issue a writ of mandamus or such other writ, order or direction directing the court below to revive the order of attachment passed in I.A.No.1082 of 2009. 2. Petitioner is the plaintiff in O.S.No.147 of 2009 on the file of the Additional Sub Court, North Paravur. Suit is one for money, and the respondent is the defendant. With the suit, plaintiff had moved an application for interim attachment of an immovable property belonging to the respondent/defendant under Order 38 Rule 5 of the Code of Civil Procedure. An interim attachment before judgment with notice to the respondent directing him to furnish security for the suit claim or show cause, was ordered by the learned Sub Judge. The respondent, on appearance, resisted the application disputing the genuineness of the document which was produced by the petitioner/plaintiff to substantiate the suit claim of Rs.1,90,000/-. W.P.C.No.34086/09 - 2 - Accepting the contention raised by the respondent that the document produced, which was written on a stamp paper of Rs.50/- containing a promise to return the amount of Rs.1,90,000/- alleged to have been borrowed earlier, cannot be treated as an agreement, but, only as a bond the learned Sub Judge concluded that it is insufficiently stamped and till sufficient stamp duty is paid with penalty, it cannot be acted upon. Interim attachment already ordered was thereupon vacated and the application of the plaintiff dismissed observing that it will not stand in the way of the plaintiff in moving a fresh application after the document is properly stamped as required. P1 is the copy of that order. Propriety and correctness of P1 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. Learned counsel for the petitioner submitted the suit claim was based on the original cause of action between the borrower and the defendant and the document produced was only evidencing an acknowledgement as to the previous borrowal. That being so, the document could not have been construed as a 'bond' as mistakenly done by the learned Sub Judge, submits the counsel. Without even giving an opportunity to the plaintiff to show that the document would not come within the ambit W.P.C.No.34086/09 - 3 - of a 'bond', and, further, without noticing the case set in the plaint that the document produced is not the basis of the suit claim, but, only as an acknowledgment of a previous borrowal, according to the learned counsel, the learned Sub Judge under the impugned order (P1), had lifted the attachment and dismissed the application. On the other hand, learned counsel for the respondent contended that no interference with the order passed by the learned Sub Judge is called for invoking the visitorial jurisdiction vested with this court. 4. A copy of the document, which was found to be insufficiently stamped as a 'bond' under the impugned order was handed over to me for my perusal. It is seen from the copy of the document, the original of which was written on a stamp paper of Rs.50/-, that it was given as an acknowledgment to a previous borrowal of a total sum of Rs.1,90,000/- by way of several payments earlier, promising to discharge that debt in toto or piecemeal within a period of six months. That document produced in the suit was construed by the learned Sub Judge as a bond and that it was insufficiently stamped. The most essential and crucial element which distinguishes a bond from an agreement is that an acknowledgement evidencing a preexisting liability would not normally become a bond. What is to be noticed and scrutinised is whether a liability is created in the W.P.C.No.34086/09 - 4 - document itself or whether it is an acknowledgment of a preexisting liability. Without examining the document produced in that line, it is apparent the court below has straightway jumped into the conclusion that the document is a bond. The learned Sub Judge is directed to reexamine the document produced with reference to the decisions rendered by this court in Sreedharan v. Gopi (2003(2) KLT 372) and Radha v. Sankaranarayanan (2007(1) KLT 20) both of which will give an insight as to the distinctions to be drawn between a bond and an agreement. P1 order passed by the learned Sub Judge is set aside and the application for interim attachment dismissed under the order shall stand restored, with the order of interim attachment passed by the court below revived as if it had not been lifted. The learned Sub Judge shall dispose the application for interim attachment afresh taking note of the observations made above and in accordance with law, within a period of three weeks from the date of receipt/production of a copy of this judgment. Writ Petition is disposed as indicated above. Send a copy of the judgment to the court concerned forthwith. srd S.S. SATHEESACHANDRAN, JUDGE W.P.C.No.34086/09 - 5 -