IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.M.SHAFFIQUE WEDNESDAY, THE 14TH DECEMBER 2011 / 23RD AGRAHAYANA 1933 FAO.No. 359 of 2011 --------------------------- AGAINST THE ORDER DATED 30.11.2011 IN I.A 3157 OF 2011 IN OS.660/2011 of PRINCIPAL SUB COURT,KOLLAM .................... APPELLANTS (S): PETITIONERS: ---------------------------------------------- 1. THAHIRA BASHEER, AGED 56, PRIYADARSHINI NAGAR 173 A, HERITAGE, 2ND MILESTONE, KILIKOLLOOR, KOLLAM, REPRESENTED BY HER POWER OF ATTORNEY HOLDER AHAMMED BASHEER, AGED 68, S/O. M.K.ABDUL RAZAK, RESIDING AT THE ABOVE ADDRESS WARD NO.XV, HOUSE NO.564. 2. SINAN BASHEER, S/O.AHAMMED BASHEER, AGED 33 PRIYADARSHINI NAGAR 173 A, HERITAGE, 2ND MILESTONE, KILIKOLLOOR, KOLLAM. 3. THAZNEEM SAYEM, W/O.SAYEM BASHEER, AGED 33, PRIYADARSHINI NAGAR 173 A, HERITAGE, 2ND MILESTONE, KILIKOLLOOR, KOLLAM. BY ADV. SRI.R.S.KALKURA SRI.M.S.KALESH SRI.HARISH GOPINATH SRI.V.VINAY MENON SRI.GENS GEORGE ELAVINAMANNIL RESPONDENT(S): RESPONDENT: ---------------------------------------------- MUJEEB RAHIMAN, AGED 42, S/O.A.SHAKE PAREED, PROPRIETOR MUJEEB CASHEW INDUSTRIES, CASHEW MANUFACTURER & IMPORTERS PRIYADARSHINI NAGAR 119 A.A., KILIKOLLOOR P.O., KOLLAM-691004. BY ADV. SRI.V.PHILIP MATHEW THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 14/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & A. M. SHAFFIQUE, JJ. ------------------------------------------------------- F.A.O.No.359 of 2011 ----------------------------------------- Dated, this the 14th day of December, 2011 J U D G M E N T K.M.Joseph, J. This appeal is filed against the order in I.A.3157/2011 in O.S.660/2011 on the file of the Principal Sub Court, Kollam vacating the order of conditional attachment passed earlier by the court on an application made by the appellants. Appellants are the plaintiffs in O.S.No.660/2011. Application for attachment was filed and it resulted in conditional attachment as already referred. 2. We heard the learned counsel for the appellants and learned counsel for the respondent. The court below has actually proceeded on the basis that the suit itself is not maintainable for the reason that the appellants/plaintiffs is to be treated as a firm and since the firm is not registered the suit is not maintainable under Section 69 of the Partnership Act since the suit is for realisation of amount purportedly due under a contract. 3. Learned counsel for the appellants would point out that the court below has not considered various aspects. He also relied on the judgment in Tulsidas Mulji v. Ebrahimjee (1959 FAO 359/2011 -2- KLT 966). Learned counsel for the respondent relied on the decisions reported in Loonkaran Sethia v. Ivan E.John (1977 SC 336) and also Town Investments v. Subramanian (2001 (3) KLT 848). It would appear that both the parties had actually produced a number of documents. None of the documents are seen marked. Learned counsel for the respondent would submit that ultimate chance of the plaintiffs in succeeding is also be borne in mind and he also relied on the decision reported in Raman Tech. & Process Engg. Co. v. Solanki Traders (2008 (2) SCC 302). The plaint claim consists of two parts, that is to say, the amount of Rs.6,85,000/- represents the amount due on the basis of it being paid to the defendant. The balance apparently consists of a claim for damages. 4. After having heard the learned counsel for the parties we feel that the respondent should be called up on to furnish security. The respondent is in fact prepared to furnish security for Rs.3 lakhs. As far as further sums are concerned, there is dispute. In such circumstances, having regard to interest of justice we set aside the impugned order and we dispose of the appeal as follows: FAO 359/2011 -3- The respondent will furnish security to the satisfaction of the court below for Rs.6,85,000/- within a period of one month from today. We record the undertaking of the learned counsel for the respondent on behalf of the respondent that the respondent will not alienate attachment schedule properties till security is furnished and accepted by the court below. (K.M.JOSEPH) JUDGE. (A. M. SHAFFIQUE) JUDGE. MS