IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 13TH JULY 2009 / 22ND ASHADHA 1931 WP(C).No. 26797 of 2007(M) --------------------------------------- OS.NO.119/2004 OF SUB COURT, THIRUVALLA. .................... PETITIONERS: --------------------- 1. T.O.ALEYAS, S/O.LATE KURUVILA UNNITTAN, THOTTATHIL HOUSE, MUTHOOR P.O., THIRUVALLA. 2. SHEBA ALEYAS, W/O.T.O.ALEYAS, THOTTATHIL HOUSE, MUTHOOR P.O., THIRUVALLA. 3. THANKAMMA BABY, W/O LATE T.O.BABY, MARY SADANAM, THURUTHICADU P.O., MALLAPPALLY TALUK. 4. GIGY KURIAKOSE, S/O.LATE T.O.KURIAKOSE, THOTTATHIL HOUSE, THURUTHICADU P.O., MALLAPPALLY TALUK. 5. ABRAHAM BABY, S/O.LATE T.O.BABY, MARY SADANAM, THURUTHICADU P.O., MALLAPPALLY TALUK. 6. BINOJ T.BABY, S/O.LATE T.O.BABY, IN DO. DO. 7. STEPHEN BABY, S/O.LATE T.O.BABY, IN DO. DO. BY ADVS. MR.K.JAYAKUMAR, MR.P.B.KRISHNAN. RESPONDENTS: ------------------------ 1. M/S.T.O.ABRAHAM & CO.,ST.MARY'S TOWERS, RAMACHIRA, MUTHOOR P.O.,THIRUVALLA VILLAGE AND TALUK, REPRESENTED BY MANAGING PARTNER T.O.ABRAHAM, S/O.LATE KURUVILLA UNNITHAN,THOTTATHIL MALIYEKKAL HOUSE,THURUTHICADU P.O., MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT. W.P.(C). NO.26797/2007-M: 2. T.O.ABRAHAM, S/O.LATE KURUVILLA UNNITHAN, THOTTATHIL MALIYEKKAL HOUSE, THURUTHICADU P.O., MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT. 3. MARIAMMA SKARIAH, W/O.LATE T.S.SKARIAH, URUMBIKUNNEL HOUSE, THURUTHICADU P.O., MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT. 4. BINU ZACHARIAH, S/O. DO. IN DO. DO. 5. M/S.T.O.ABRAHAM & CO., WINDSOR COMPLEX, KODIMATHA, KOTTAYAM, BEARING REGN.NO.1340/2005, REPRESENTED BY ITS MANAGING PARTNER, SHRI T.O.ABRAHAM. 6. THE BHARATH OVERSEAS BANK LTD., KOTTAYAM, REPRESENTED BY ITS BRANCH MANAGER. 7. THE STATE BANK OF TRAVANCORE, THIRUVALLA, REPRESENTED BY ITS BRANCH MANAGER. R1 TO R5 BY ADVS. MR.V.AJAKUMAR, MR.T.M.CHANDRAN, R6 BY ADVS. MR.V.PHILIP MATHEW, SMT.VEENA EBBY, R7 BY ADVS. MR.SATHISH NINAN, MR.SANTHOSH MATHEW. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.26797/2007-M: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PLAINT IN O.S. NO. 119/2004 OF SUB COURT, THIRUVALLA DTD. 18/12/2004. EXT.P.2: COPY OF THE I.A. NO. 882/2006 IN O.S. 119/2004 DTD. 31/08/2007. EXT.P.3: COPY OF THE ALLEGED DEED OF PARTNERSHIP OF RESPONDENT NO.5 FIRM DTD. 08/07/2005. EXT.P.4: COPY OF THE JUDGEMENT OF THIS HONOURABLE COURT IN W.P.(C). NO.4347/2007-P DTD. 01/03/2007. EXT.P.5: COPY OF THE I.A. 546/2007 IN O.S. 119/2004 OF SUB COURT, THIRUVALLA DTD. 15/06/2007. EXT.P.6: COPY OF THE OBJECTION FILED BY THE PETITIONERS HEREIN AGAINST I.A. 546/2007 IN O.S.119/2004 OF SUB COURT, THIRUVALLA DTD. 04/07/2007. EXT.P.7: COPY OF THE ORDER IN I.A. 546/2007 IN O.S. NO. 119/2004 OF SUB COURT, THIRUVALLA DTD. 20/08/2007. RESPONDENTS' EXHIBITS: EXT.R1.A: COPY OF THE ORDER IN O.S. NO. 383/2004. EXT.R1.B: COPY OF THE ORDER IN C.M.A. NO. 41/2005. EXT.R1.C: COPY OF THE JUDGMENT OF THE W.P.(C).NO.12390/2005. //TRUE COPY// P.A. TO JUDGE. Prv. S.S. SATHEESACHANDRAN, J. ```````````````````````````````````````````````````` W.P.(C) No. 26797 OF 2007 M ```````````````````````````````````````````````````` Dated this the 13th day of July, 2009 J U D G M E N T The erstwhile partners of a firm are engaged in litigations giving rise to four suits which are pending before the Sub Court, Thiruvalla. The contesting parties in the suits have no dispute that the previous firm in which both were partners is no longer in existence. Whereas the 2nd respondent has a case that the new firm has been constituted with the name of the previous firm with new registration number, which is the 5th respondent in the writ petition, the petitioners have a case that funds of the previous firm had been siphoned of by the 2nd respondent and he is liable to the partners of the previous firm. Controversy between the parties has necessarily to be gone into and adjudicated by the civil court in which the four suits are pending for consideration. In the present writ petition, the dispute pertains to some amounts purported to have been deposited as earnest money by the 5th respondent for placing tenders before the Kerala Water Authority. The 5th respondent was not successful in getting the work covered WPC.26797/07 : 2 : by the tender but his claim for refund of the earnest money was resisted and objected to by the petitioners, the partners of the previous firm, contending that the sum tendered as earnest money was siphoned of from the funds of the previous firm. The 5th respondent thereupon filed a writ petition before this court to direct the Kerala Water Authority to refund the earnest money. That writ petition was disposed by Ext.P4 judgment directing the Kerala Water Authority to deposit the sum received as earnest money in the suit OS.No.119/04, which was filed by respondents 1 to 4 for settlement of accounts of the previous firm. In compliance of Ext.P4 judgment, the Kerala Water Authority deposited the earnest money collected from the 5th respondent in the suit and thereupon as directed in the judgment the 5th respondent moved an application for releasing the sum. Release of the sum was objected to by the petitioners/ the defendants in the suit contending that the sum deposited as earnest money had been siphoned of from the funds of the previous firm. The learned Sub Judge, after hearing both sides, overruled the objections and allowed the 5th respondent to get release of the sum deposited in WPC.26797/07 : 3 : the court by the Kerala Water Authority. Propriety and correctness of that order, copy of which is produced as Ext.P7, is challenged by the petitioners in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 2. I heard the counsel on both sides. At the time of hearing, a consensus was arrived at that the 5th respondent can get release of the amount on the deposit on furnishing a bond that such release will be subject to the final decision in the suit for settlement of accounts as between the partners of the erstwhile firm. The learned counsel for the 5th respondent wanted this court to make it clear that the concession so made for getting release of the amount in deposit by executing a bond should not be taken as in any way admitting or conceding that the funds of the previous firm had been utilized for tendering the earnest deposit and also, further, in getting release of any withdrawal or funds due to the 5th respondent from any business transaction, contract or work or from any concern. The execution of the bond will not have any bearing or any precedential value. Learned counsel for the petitioners has no objection to the clarification so insisted upon by WPC.26797/07 : 4 : the learned counsel for the 5th respondent. Submissions made by the counsel on both sides as above are recorded. The counsel on both sides submit that towards earnest money deposit 5th respondent, the Kerala Water Authority has produced two deposit receipts which are mentioned in Ext.P7 order of the court below. I direct the court below to release the amount deposited by the Kerala Water Authority in the suit to the 5th respondent on his executing a bond as indicated above. Writ petition is closed. (S.S. SATHEESACHANDRAN, JUDGE) aks