IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 24TH FEBRUARY 2009 / 5TH PHALGUNA 1930 WP(C).No. 5434 of 2009(O) ------------------------- PETITIONER(S): --------------- R.BALAKRISHNAN, S/O.LATE E.RAMASWAMY, R/AT. NO.261, 4TH CROSS RMV EXTENSION, II STAGE, II BLOCK, BANGALORE-560 094. BY ADV. SRI.T.C.SURESH MENON PRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP RESPONDENT(S): --------------- 1. EASWAR OIL INDUSTRIES PVT. LTD. REGISTERED OFFICE, 16/390, VATTAMKULAM PANCHAYAT, EDAPPAL AMSOM, SUKAPURAM DESOM, PONNANI TALUK, MALAPPURAM. 2. O.V.NAMBIAR, S/O.LATE T.V.P.NAMBIAR, R/AT.NO.36, COLLEGE ROAD, CHENNAI-600 006. 3. R.EASWARAN, S/O.LATE E.RAMASWAMY, R/AT. EASWAR NIVAS, TRIKKAVU PO, PONNANI, MALAPPURAM-679577. 4. THE MANAGER, KERALA FINANCIAL CORPORATION MALIYEKKAL BUILDING, 1ST FLOOR , MANJERI ROAD UPHILL, MALAPPURAM-676505. 5. PUNJB NATIONAL BANK, REP. BY ITS GENERAL MANAGER, REGIONAL OFFICE, KOZHIKODE-16. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- W.P.(C).No.5434 of 2009 --------------------------------------------- Dated this the 24th day of February, 2009 JUDGMENT The petitioner is the plaintiff in O.S.No.43/08 on the file of the court of the Subordinate Judge of Tirur. Originally, respondent Nos.1 and 2 were parties to the suit. The petitioner filed an application to implead respondent Nos.3 to 5 as defendants in the suit, as per I.A.No.2551/08. The suit is for a decree declaring that the General Body Meeting of the first respondent Company proposed to be held on 7.2.2008 or on subsequent dates is illegal and unauthorised. There is also a prayer for prohibitory injunction restraining the respondents from alienating the properties of the first respondent Company. 2. The petitioner filed I.A.No.2553/08 on 22.11.2008 to appoint an Advocate receiver to manage the plaint schedule property. It is stated that the respondents have filed objections in I.A.No.2553/08. I.A.No.2553/08 is not disposed of. The reliefs prayed for in the Writ Petition are the following: (i) issue a writ in the nature of mandamus directing the Court of the Subordinate Judge of Tirur to dispose of WPC No.5434/2009 2 Exts.P1 and P2 applications in accordance with law within a period of three weeks. (ii) issue a writ in the nature of mandamus directing the court below to have an advocate receiver appointed to manage the plaint schedule property and commit the same into his custody pending suit and (iii) issue such other writ, order or direction as this Hon'ble court deems fit and proper in the circumstances of the case.” Ext.P1 is I.A.No.2551/2008 for impleading respondent Nos. 3 to 5 and Ext.P2 is I.A.No.2553/08 to appoint a receiver. 3. The learned senior counsel Sri.Chitambaresh appearing for the petitioner submitted that the suit was filed on 6.2.2008 and on that day the court below passed an order of interim injunction. It is submitted that the respondents have violated the order of interim injunction. The petitioner has filed an application (I.A.No.2554/2009) before the court below under Order 39 Rule 2A of the Code of Civil Procedure . The learned counsel appearing for the respondents submitted that there was no violation of the order of interim injunction. The sale of the property and the machinery was as per the order dated 10th April 2003 passed by the High Court in C.M.P.No.2021 of 2003 in C.M.A.No.87 of 2003 and also as per the order passed by the Company Law Board. This question need not be considered in this Writ Petition since it has to come up for consideration of the WPC No.5434/2009 3 court below in I.A.No.2554/09. 4. All the counsel appearing for the parties agreed that a direction can be issued to the court below to dispose of I.A.No.2553/08 and that no party would request for any adjournment before the court below. The learned senior counsel for the petitioner submitted that in view of the subsequent developments, it is necessary to injunct the respondents from allowing any other person to remove the machinery from the property. This prayer is objected to by the counsel appearing for the respondents. The learned senior counsel for the petitioner submitted that if the machinery are removed and the application for appointment of Advocate Receiver is considered only later, the purpose of appointing a receiver would not be achieved fully. After having heard the learned counsel for the parties, I dispose of the Writ Petition with the following directions: (i) The learned Subordinate Judge shall post I.A.No.2553/08 for hearing on 27th February 2009 and hear the counsel appearing for the parties. The application shall be disposed of on or before 3rd March 2009. (ii) The petitioner/plaintiff shall be entitled to move for WPC No.5434/2009 4 interlocutory applications for temporary injunction against removal of machinery, for appointment of Commissioner or for any other purpose which is needed in the facts and circumstances of the case before 27th February 2009. When such an application is moved, the court below shall take up the same for hearing on the next day and shall pass appropriate orders. The learned counsel for the respondents agreed that if such applications are filed, the respondents would be ready to put forward their arguments and no adjournment would be sought for under any circumstances. It is made clear that I have not expressed any view on the merits of the contentions of the parties in respect of appointment of Commissioner, grant of temporary injunction or any other interim order. K.T.SANKARAN, JUDGE csl Hand over copy of the order to the counsel appearing for all the parties.