IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 9TH JUNE 2009 / 19TH JYAISHTA 1931 FAO.No. 76 of 2009() -------------------- I.A. 9301/2008 IN OS.1721/2008 of PRL.SUB COURT,THRISSUR .................... APPELLANTS(S)/RESPONDENTS 4 & 5: ----------------------------------------------------- 1. M/S.KALLATE REALTORS AND DEVELOPERS PVT.LTD., KUTTOOR P.O., THRISSUR 680 013, REPRESENTED BY ITS MANAGING DIRECTOR. 2. K.V.MOHANAN, AGED 58 YEARS, S/O.VELAYUDHAN, MANAGING DIRECTOR, M/S.KALLATE REALTORS AND DEVELOPERS PVT.LTD., RESIDING AT KALLATE KUTTOOR VILLAGE, THRISSUR. BY ADV. SRI.K.J.SAJI ISAAC DR.ELIZABETH VARKEY RESPONDENT(S)/RESPONDENTS 1 – 3& PETITIONER: -------------------------------------------------------------------------- 1. M/S.NEW LOOK RUBBERS PVT.LTD., POONKUNNAM, THRISSUR, REPRESENTED BY ITS MANAGING DIRECTOR. 2. M.C.JOSE, S/O.CHACKO, AGED ABOUT 70 YEARS MANAGING DIRECTOR, M/S.NEW LOOK RUBBERS PVT.LTD., RESIDING AT NEDUMPAL MOORKANATTU KARA HOUSE, THOTTIPPAL VILLAGE, MUKUNDAPURAM TALUK, THRISSUR. 3. M.C.AGNES, W/O.M.C.JOSE, AGED ABOUT 60 YEARS, DIRECTOR, M/S.NEW LOOK RUBBERS PVT.LTD., RESIDING AT NEDUMPAL MOORKANATTU KARA HOUSE, THOTTIPPAL VILLAGE, MUKUNDAPURAM TALUK, THRISSUR. 4. HIMAMUDHEEN, AGED 50 YEARS, S/O.RAMJI SETTU, REPRESENTED BY POWER OF ATTORNEY HOLDER, RAMALA HIMAMUDHEEN, AGED 43 YEARS RESIDING AT RAYAMARAKKAR HOUSE, MANATHALA AMSOM, CHAVAKKAD POST, THRISSUR. ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE FOR R1 TO 3 SRI.T.C.SURESH MENON FOR R1 TO 3 SRI.JIBU P THOMAS FOR R1 TO 3 SRI.P.S.APPU FOR R1 TO 3 SRI.A.R.NIMOD FOR R1 TO 3 SRI.C.A.ANOOP FOR R1 TO 3 SRI.REGHUNATH SRI.G.S.REGHUNATH FOR R4 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 09/06/2009, ALONG WITH F.A.O. NO.88/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. Nos.76 & 88 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of June, 2009. JUDGMENT Raman, J, Both these appeals arise from the order in I.A. 9301 of 2008 in O.S. 1721 of 2008 on the file of the Principal Sub Court, Thrissur. The suit is one for specific performance instituted by the respondents herein. In that the present I.A. was filed seeking to restrain the defendants from alienating the property or for construction of any building thereon. It may be noticed that the agreement was between the plaintiff and defendants 1 to 3. The subject matter of the property has seen sold in favour of defendants 4 and 5. Therefore in effect injunction was sought against respondents 4 and 5. The court below after hearing the parties granted an injunction as prayed for, against which two sets of appeals have been preferred, one by defendants 1 to 3 and the other by defendants 4 and 5. 2. We have heard the parties. 3. Being an interim order and being a specific performance suit, restraining the defendants from alienating further the property is only to maintain status quo. But a prima facie case has to be FAO.76 & 88/2009. 2 found out based on the evidence on record. There is a contention on behalf of the defendants that the plaintiff has accepted the entire advance amount with interest and this contention has been referred to by the court below in paragraph 6 of the order. They placed reliance on Annexure A3 Lawyer notice in support of their contention. Learned counsel appearing for the respondent Sri. G.S. Reghunath however would submit that a reply notice has been sent and it has been pointed out that the acceptance is without prejudice to the right to claim specific performance and the reply notice is also produced in this case as Annexure B12. But we find that the court below did not consider the contention regarding acceptance of the returned advance money by the plaintiff while considering the prima facie case. In the circumstances, we direct the court below to consider the contention raised by the parties in the light of the materials produced and form an opinion whether it is a fit case where the discretion of granting the injunction should be exercised or not. 4. We are not expressing any final opinion and it is for the court below to consider the said contentions as indicated above. For the limited purpose of enabling the court below to pass a fresh order in the light of what has been stated above, we set aside the order passed by the court below. However, we direct that until consideration by the court below and FAO.76 & 88/2009. 3 passing fresh orders, status quo as on today will continue. The court below will rehear the matter and pass appropriate orders within a period of one month from the date of receipt of a copy of this order. It may also consider the disposal of the very suit itself, if pre-trial stages are over. P.R. Raman, Judge P. Bhavadasan, Judge sb.