IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 20TH AUGUST 2009 / 29TH SRAVANA 1931 WP(C).No. 37815 of 2008(B) -------------------------- OS.85/2007 of SUB COURT, PALA .................... PETITIONER(S): --------------- 1. M/S. ASMA RUBBER PRODUCTS (P) LTD/., 39-B, COCHIN SPECIAL ECONOMIC ZONE, KAKKANAD. THRIKKAKARA KARA, KAKKANAD VILLAGE, KANAYANNUR TALUK, KOCHI-682037, REP. BY ITS MANAGING DIRECTOR. 2. NISHA RAHIM, W/O. CYA RAHIM, HOUSE NO.14, WARD NO.VII/115N, NOEL HERITAGE, KIZHAKKEKARA ROAD, THRIKKAKARA KARA, VAZHAKALA VILLAGE, KANAYANNUR TALUK, KOCHI - 682 021. BY ADV. SRI.C.S.ULLAS SRI.S.JAMAL RESPONDENT(S): --------------- 1. STATE BANK OF INDIA, OVERSEES BRANCH INDIRA GANDHI ROAD, WELLINGTON ISLAND, KOCHI - 682 003, REP. BY ITS ASSISTANT GENERAL MANAGER. 2. C.Y.A RASHEED, AGED 53, S/O. LATE C.P.A. YUSUF, 31, QUEEN'S PARK, KEERTHI NAGAR, NEAR DESHABHIMANI, KALOOR, EDAPPALLY SOUTH VILLAGE, ELAMAKKARA KARA, KANAYANNUR TALUK, KOHCI-682017. 3. C.Y.A RAMLA MOHAMMED, AGED 48, D/O. LATE C.P.A. YUSUF, T.C 9/306, NC-3, JAWAHAR NAGAR, SASATHAMANGALAM VILLAGE, MUNDAVANAM MURI, THIRUVANANTHAPURAM TALUK, PIN - 695 003. WPC.37815/08 4. CYA RAUF, AGED 42, S/O. LATE CPA YUSUF, CPA YUSUF AND SONS, P.B. NO.4, MUNDAKKAYAM, DO VILLAGE, EDAKKUNNAM MURI, KANJIRAPPALLY TALUK, KOTTAYAM - 686 513. 5. CYA RAJINA BEEVI, AGED 39, D/O. LATE CPA YUSUF, PRIYA DARSHINI NAGAR, PLOT NO.98, PARAVATANI KRA, THRISSUR VIILLAGE, AND TALUK, THRISSUR EAST.P.O, PIN-680005. 6. ASMATTINA RASHEED, AGED 25, W/O.M.M. ASEEF MEHFIL HOUSE, T.C 16/1722-1 ULLOOR LANE, DPI JUNCTION, THYCAUD MURI, THYCAUD VILLAGE, THIRUVANANTHAPURAM NORTH TALUK, THYCAUD.P.O, THIRUVANANTHAPURAM-695014. 7. FATHIMA BEEVI RASHEED, AGED 22, W/O. ABDUL AZEEZ, PLIATHAZHATHU VEEDU, THRIKKARA KARA, VAZHAKKAL VILLAGE, KANAYANNUR TALUK, THRIKAKKARA.P.O, KOCHI-682028. 8. FATHIMA NASMIN MOHAMMED, AGED 24, W/O. RIYAZ, T.C 9/305(1), NC-3, JAWAHAR NAGAR, SASTHAMANGALAM VILLAGE, MUNDAVANAM MURI, THIRUVANANTHAPURAM TALUK, PIN -695 003. 9. TARIQ MOHAMMED, AGED 22, S/O. MOHAMMED ABDULLA, T.C 9/305(1), JAWAHAR NAGAR, SASTHAMANGALAM VILLAGE, MUNDAVANAM MURI, THIRUVANANTHAURAM TALUK, PIN - 695 003. 10. K.M. PHILIP, AGED 50, S/O. KARIMBIL MATHEW, MARIMBIL HOUSE, THALLUMUKAL KARA.P.O, KOTTICKAL VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM - 686 514. 11. V.A. KUNJUMON, AGED 43, S/O.V.K. HASSAN, VALIYAPARAMBIL HOUSE, THALLUMUKAL KARA.P.O, KOOTICKAL VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM - 686 514. 12. C.D. MATHAI, AGED 66, S/O. DANIEL, CHEERUKOZHUTHIL, THALLUMUKAL KARA.P.O, KOOTICKAL VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM - 686514. 13. P.R. SABU, AGED 43, S/O. RAGHAVAN, POYILLATHU, THALLUMUKAL KARA.P.O, KOOTICKAL VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM - 686514. WPC.37815/08 14. JAHEEL RAUF, AGED 36, W/O. CYA RAUF, PALARUTHU PUTHUKUDIYIL, ALUVA VILLAGE, ALUVA KARA. P.O. ALUVA - 683 101. 15. A.M. AKBAR ALI, AGED 46, S/O.A.A. BADURUDEEN, PLOT NO. 98, PRIYADARSHINI NAGAR, PARAVATHANI KARA, THRISSUR VILLAGE, THRISSUR EAST.P.O, THRISSUR - 680 005. 16. CYA RAHIM, AGED 46, MANAGING DIRECTOR, M/S. ASMA RUBBER PRODUCTS PVT. LTD., HOUSE NO.14, WARD NO.VII/115N, NOEL HERITAGE, KIZHAKKEKARA ROAD, THRIKKAKARA KARA VAZHAKKALA VILLAGE, KANAYANNUR TALUK, KOCHI-682021. 17. CYA RAZACK, AGED 44, BISMI, POWER HOUSE ROAD, ALUVA KARA, ALUVA VILLAGE, ALUVA-683 101. 18. SASIDHARAN NAIR, SREEPADAM HOUSE, VAZHOOR KARA, CHANGANASSERY TALUK, KOTTAYAM DISTRICT. 19. SARASAMMA, W/O. SASIDHARAN NAIR, SREEPADAM HOUSE, VAZHOOR KARA, CHANGANASSERY TALUK, KOTTAYAM DISTRICT. ADV. SRI.GEORGE THOMAS(MEVADA), SC, SBI FOR R1 SRI.K.K.JOHN FOR R2 SRI.LIJI.J.VADAKEDOM FOR R18-19 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.37815/08 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN O.S.NO.85/2007 IN THE SUB COURT, PALA. EXT.P2: COPY OF THE I.A.1273/2007 IN O.S.85/2007 IN THE SUB COURT, PALA. EXT.P3: COPY OF THE COUNTER AFFIDAVIT I.A.1273/2007 FILED BY 15TH DEFENDANT. EXT.P4: COPY OF THE COUNTER AFFIDAVIT IN I.A.1273/07 FILED BY 17TH DEFENDANT. EXT.P5: COPY OF THE ORDER DATED 20.09.2008 IN I.A.1273/2007 IN THE SUB COURT, PALA. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.37815 OF 2008 (B) ----------------------------------- Dated this the 20th day of August, 2009 J U D G M E N T The writ petition is filed seeking the following reliefs: i. to call for the records leading to the issuance of Ext.P5 order and set aside the same and dismiss Ext.P2 petition. ii. to issue any other writ, order or direction, this Honourable Curt would deem fit to issue in the facts and circumstances of the case. iii. to issue the cost of this writ petition. 2. Petitioners are 15th and 17th defendants in O.S.No.85 of 2007 on the file of the Sub Court, Pala. The above suit has been instituted by the 1st respondent, a public sector bank for a declaration that some of the documents executed by defendants 1 to 4, 15, 16, 17 and 18 are liable to be treated as fraudulent transfers as covered under Section 53 of the WPC.37815/08 2 Transfer of Property Act. Since a declaration under Section 53 of the Transfer of Property Act regarding the fraudulent transfers covered by the registered documents was sought for, leave of the court was essential to institute the suit, which was applied for by the plaintiff. The court, after issuing notice to the parties and hearing both sides, granted leave by Ext.P5 order. Propriety and correctness of that order is challenged by the petitioners, 15th and 17th defendants in the suit invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. The learned counsel for the petitioners submitted that no relief is sought for against the 15th and 17th defendants in the suit, and so much so, the leave applied for by the plaintiff and granted by the court is unsustainable as against them under law and facts. The learned counsel for the 1st respondent bank submits that in respect of a loan advanced to the 15th defendant company, the defendants 1 to 4, 15, 16, 17 and 18 are guaranteers, and all of them had furnished their property as WPC.37815/08 3 security for the loan transaction. That being the position, when suit is instituted, presence of 15th and 17th defendants, who alone have objected the grant of leave by filing this writ petition, according to the counsel, is essential and necessary for a fair and proper disposal of the suit in accordance with law. After perusing the materials produced with the writ petition including copy of the plaint, the application for the leave applied by the 1st respondent bank with reference to Ext.P5 order, I find no impropriety or illegality in the order passed by the court below granting leave to the plaintiff to institute the suit for the reliefs claimed in the plaint. Writ petition is devoid of any merit, and it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp