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. 23049 of 2008(R) -------------------------------------- OP(ARB).NO.18/2008 OF DISTRICT COURT, PALAKKAD. .................... PETITIONER: ------------------- HDFC BANK, FORMERLY CENTURION BANK OF PUNJAB LTD., 723-THIRUMALAI TOWERS, CENTURION BANK, 2ND FLOOR, AVINASHI ROAD, COIMBATORE, REPRESENTED BY ITS MANAGER (AFR) S.PRAKASH. BY ADV. SRI.T.RAJESH. RESPONDENT: --------------------- SWAMYNATHAN T.S., S/O.SUBRAMANIAN, THERAYANGOD HOUSE, EZHIKKAD P.O. MUNDUR, PALGHAT. BY ADVS. SRI.I.DINESH MENON, SRI.RENJITH B.MARAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/01/2009, ALONGWITH W.P.(C).NO.28869/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.23049/2008-R: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ARBITRATION O.P. NO. 18/2008 OF DISTRICT COURT, PALAKKAD DTD. 11/01/2008. EXT.P.2: COPY OF THE I.A. NO. 107/2008 IN ARBITRATION O.P. NO. 18/2008 DTD. 11/01/2008. EXT.P.3: COPY OF THE OBJECTION FILED BY THE RESPONDENT. EXT.P.4: COPY OF THE ORDER IN I.A. NO. 107/2008 IN ARBITRATION O.P. NO. 18/2008 DTD. 26/03/2008. EXT.P.5: COPY OF THE PETITION FILED BY THE RESPONDENT I.A. 890/2008. EXT.P.6: COPY OF THE PETITION SEEKING MANDATORY INJUNCTION. EXT.P.7: COPY OF THE COMMON ORDER IN I.A. 890 AND 971/2008 DTD. 03/07/2008. EXT.P.8: COPY OF THE EXTRACT OF ACCOUNTS NO:LCOM 204200000 30554 (90058791). RESPONDENTS' EXHIBITS: EXT.R1.A: COPY OF THE STATEMENT OF ACCOUNTS OBTAINED FROM THE BANK. EXT.R1.B: COPY OF THE STATEMENT REVEALING THE REMITTANCES MADE. //TRUE COPY// P.S. TO JUDGE. prv. K.P.BALACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)Nos. 23049 & 28869 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of January, 2009 JUDGMENT These writ petitions arise out of a common order/Ext.P7, passed by the District Judge, Palakkad on IA No.890/08 and IA 971/08 in Arbitration OP No.18/08. The first one of these writ petitions is filed by the creditor Bank and the latter one is filed by the debtor Swaminathan, who is the respondent in the former writ petition. 2. In Arbitration OP No.18/08(Ext.P1), the creditor bank filed Ext.P2 application for a conditional order of attachment of the scheduled Tempo Traveller contract carriage, bearing Registration No.KL 9 U 4416, in the event of the debtor not furnishing security for the debt of Rs.4, 73, 844/- and that was allowed by the Court below. It is common case that the vehicle has not however been attached pursuant to the said order. It is submitted that vehicle had been taken out of jurisdiction of the court below to avoid attachment being effected. 3. The debtor filed Ext.P3 counter and considering the said WPC Nos.23049 & 28869/08 -:2:- counter also the District Judge ordered attachment being kept in abeyance till 21.05.08 and directing that debtor shall, in the meanwhile, furnish sufficient security for the claim involved in the arbitration including interest, cost etc. The debtor filed Ext.P5 application in the court below (IA 890/08) for an order directing the release of the vehicle in the event of its attachment on executing a kachit and the creditor bank filed Ext.P6 application (IA No.971/08) for a mandatory injunction directing the respondent to give back possession of the scheduled vehicle to them. 4. By Ext.P7 common order passed on IA Nos.890 and 971 of 2008, the District Judge directed release of the vehicle after attachment, on the debtor executing a kachit incorporating, inter alia, conditions that he shall pay Rs.16,000/- per month to the creditor bank on or before the 15th of every month and in case of default in payment of any one instalment, the kachit shall stand cancelled and the vehicle will be proceeded against and that the debtor shall produce the vehicle before the court as and when directed etc. It is the said order that is assailed by both sides. Though the debtor has assailed Ext.P7 order, it is the admitted case that he has not paid any WPC Nos.23049 & 28869/08 -:3:- amount at all in compliance with Ext.P7 order, nor has he got any reason to submit for non-compliance of the order. Hence, he is not entitled to any relief in WPC No. 28869/08 filed by him. In short, in as much as the debtor has not paid any amount at all, pursuant to Ext.P7 order and the attachment of the vehicle also is not effected, Ext.P7 order has to be modified allowing the writ petition filed by the creditor bank directing the debtor to produce before the District Judge, Palakkad the vehicle aforesaid positively within one week from today. 5. In the result, I dismiss WPC No.28869/08 and dispose of WPC No.23049/08 directing the respondent debtor to produce the vehicle aforesaid, having registration No.KL 9 U 4416, before the District Judge, Palakkad positively within one week from today. Counsel for the respondent debtor shall see to it that the debtor produces the vehicle before the court in compliance of this order. Issue copy of this judgment to counsel on both sides urgently. K.P.BALACHANDRAN, JUDGE ttb