IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 7TH AUGUST 2009 / 16TH SRAVANA 1931 WP(C).No. 21106 of 2009(O) --------------------------------------- AS.179/2009 of DISTRICT COURT, KOTTAYAM .................... PETITIONER(S): --------------------- T.M. SEBASTIAN, S/O. MATHAI, AGED 69, THARAPPEL HOUSE, MADAKKAKUNNU P.O., ELIKULAM KARA AND VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT. BY ADV. MR.JOHNSON MANAYANI RESPONDENT(S): ------------------------- 1. K.L. CONSTANTINE, S/O. K.S.LAWRENCE, AGED 33, KURISADI BHAVAN, THALASSERI P.O. AND KARA, KOLLAM WEST VILLAGE, KOLLAM TALUK AND DISTRICT, NOW TEMPORARILY RESIDING AT THAKADIYIL BUILDING, MADAKKAKUNNU P.O., POOVARANI VIA, ELIKULAM KARA AND VILLAGE, KANJIRAPPALLY TALUK. 2. STATE BANK OF INDIA, OVERSEAS BRANCH, COCHIN-3, REP. BY ITS MANAGER. 3. FEDERAL BANK LTD., THODUPUZHA BRANCH, THODUPUZHA P.O., REP.BY ITS MANAGER. R1 BY ADV. MR.ALEXANDER JOSEPH. R2 BY ADV. MR.K.K. CHANDRAN PILLAI, SC, SBI. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.21106 OF 2009 -------------------------- Dated this the 7th day of August 2009 ------------------------------------- JUDGMENT writ petition is filed seeking the following reliefs. i) Issue appropriate directions directing the learned District Judge, Kottayam to hear and dispose of the petitioner's Exts.P4 to P8 within a time bound frame and until then the first respondent may be restrained from cutting and removing the trees standing in the schedule to Ext.P1 petition. ii) Issue such other orders as are deemed fit and proper in the circumstances of the case. W.P.(C).No.21106 OF 2009 Page numbers 2. Petitioner has filed an insolvency petition as I.P No. 3 of 2009 before the Sub Court, Pala to declare the first respondent as insolvent under the provisions of the Insolvency Act. In that proceeding, petitioner moved an application for an interim injunction to restrain the first respondent from cutting and removing trees in his property scheduled in the petition. Initially an order of interim injunction was granted, but it was later modified permitting the petitioner to cut and remove the rubber trees alone and replanting them. The order thereof was challenged by the petitioner before this court by filing a writ petition and later noticing that a statutory appeal is provided under the provisions of Insolvency Act the writ petition was withdrawn with permission to challenge the order as provided by law. By the time the appeal was preferred, it was barred by time and so much so, a petition to W.P.(C).No.21106 OF 2009 Page numbers condone the delay was also presented. The delay petition is pending enquiry. Meanwhile the first respondent is taking hasty steps to cut and remove the rubber trees is the grievance canvassed in the writ petition for seeking appropriate directions or orders to the court where the appeal is pending for an expeditious enquiry and disposal of the delay petition and passing of orders on the appeal if it is entertained. 3. Notice being given, the first respondent has entered appearance. Notice to second and third respondents is dispensed as their presence is not found required for the disposal of this petition. 4. I heard the learned counsel on both sides. At the time of hearing the learned counsel for the first respondent submitted that he will W.P.(C).No.21106 OF 2009 Page numbers furnish an unconditional undertaking, to furnish security for a sum of Rs.5,00,000/-, to satisfy the suit claim, when within two weeks, in O.S No. 169 of 2008 in Sub Court, Pala, which was instituted by the present petitioner seeking a decree for money on the basis of a cheque for a sum of rupees five lakhs purported to have been issued by the first respondent. In that suit, on the application moved by the petitioner under Order 38 Rule 5 of the Code of Civil Procedure it is submitted an interim order of attachment before judgment has already been passed by the court attaching the property of the first respondent. Cutting and removal of rubber trees from that property, it is submitted, has given rise to the present controversy arising for consideration in the present petition. It is further submitted by the counsel that the cutting and removal of the trees as per the terms of the agreement entered with W.P.(C).No.21106 OF 2009 Page numbers another is essential to furnish the security for the suit claim of rupees five lakhs and so much so, he may not be restrained from honouring the terms of that agreement. The learned counsel for the petitioner submits that he has no objection in disposal of the writ petition subject to the condition that first respondent shall file an undertaking to the court below in the suit, before the Sub Court, Pala, within the time limit fixed by this court, as submitted by his learned counsel. It is further submitted by the counsel that on such undertaking being furnished, the petitioner will not pursuing the insolvency proceedings and also the appeal proceeded against the order from the interlocutory application which is now being agitated in an appeal before District Court, Kottayam. Submissions made by the respective counsel are recorded. W.P.(C).No.21106 OF 2009 Page numbers 4. Writ petition is disposed directing the first respondent to furnish the undertaking before the Sub Court, Pala, as submitted by his counsel, to produce security for a sum of respondents.5,00,000/- to satisfy the suit claim, within a period of two weeks from the date of this judgment. The undertaking shall be given without delay and security as represented to be produced within two weeks. Hand over a copy of the judgment to the counsel on both sides on usual terms, and transmit a copy to the Sub Court, Pala and District Court, Kottayam. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv