IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 17TH JUNE 2008 / 27TH JYAISHTA 1930 FAO.No. 101 of 2008() --------------------- AGAINST THE ORDER DATED 04/03/2008 IN IA.191/08 IN OS.28/2008 of I ADDL.SUB COURT, KOZHIKODE .................... : RESPONDENTS & 2 (DEFENDANTS): ---------------------------------------------- 1. M/S.ZYNERGY, SUDARSAN BUILDING, 1/3683, OPP.HERO HONDA, NADAKKAVU, CALICUT 673 011 A PARTNERSHIP FIRM, REPRESENTED BY ITS MANAGING PARTNER, KACHERI AMSOM DESOM, KOZHIKODE. 2. FAIZAL EROTH (WRONGLY DESCRIBED IN THE ORDER AS FAIZAL EDADATHU) M/S.ZYNERGY, SUDARSAN BUILDING, 1/3683, OPP.HERO HONDA, NADAKKAVU, CALICUT 673 011 BY ADV. SRI.C.P.MOHAMMED NIAS RESPONDENTS: PETITIONER (PLAINTIFF) & RESPONDENT NO.3(GARNISHEE --------------------------------------------------------------- 1. M/S.H & R JOHNSON (INDIA) LIMITED, 14/51 F, BISMI TOWERS, OPP.PUSHPA THEATRE, KALLAI ROAD, CALICUT-673 002, REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL ACCOUNTS, MR.M.V.UNNIKRISHNAN, S/O.KESAVAN NAIR, RESIDING AT A-3,PALLADIUM APARTMENTS, ELAMAKKARA, COCHIN,EKM. 2. THE AIRPORT AUTHORITY OF INDIA, REPRESENTED BY ITS DGM MR.KURIAKOSE JOSE, CALICUT INTERNATIONAL AIRPORT, CALICUT AIRPORT P.O KARIPUR, MALAPPURAM DT. 673 647. R1 BY ADV. SRI.K.RAMAKUMAR (SR.) SMT.SARITHA DAVID CHUNKATH SMT.SMITHA GEORGE FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 17/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 101 of 2008 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of June, 2008. JUDGMENT Ramachandran Nair, J. This appeal is filed by defendants 1 and 2 in O.S.No.28/2008 on the file of the Court of Subordinate Judge, Kozhikode, aggrieved by the order in I.A.No.191/2008. The said order has been passed in a petition filed under Order 38 Rule 5 read with Order 21 Rule 46 and Section 151 C.P.C., for an order of conditional attachment and for a prohibitory order against the garnishee. 2. The court below, as per the impugned order, prohibited the third respondent in the I.A. from disbursing the amount of Rs.20 lakhs from the amount payable by the third respondent to the appellants herein till the disposal of the suit, as the appellants had failed to furnish the security for an amount of Rs.20 lakhs as ordered. 3. Heard learned counsel for the appellants and learned Senior counsel Shri K. Ramakumar appearing for the first respondent. Learned counsel for the appellants submitted that the suit is one for realisation of a sum of Rs.15,76,302/- and at any rate, the prohibition against the garnishee FAO 101/2008 -2- from disbursing a sum of Rs.20 lakhs will create acute hardship. The learned Senior counsel appearing for the first respondent submitted that the order impugned is perfectly a valid one in the facts and circumstances of the case. 4. During the hearing, on a query from us as to why the appellants did not offer security for the plaint claim, the learned counsel for the appellants expressed readiness to furnish adequate security for the said amount. Learned counsel for the appellants submitted that they are prepared to deposit Rs.10 lakhs before the trial court and furnish bank guarantee for an amount of Rs.5 lakhs, since the plaint claim is to the tune of Rs.15 lakhs and odd. Learned Senior counsel for the first respondent fairly agreed with the above submission. In the light of the above, in modification of the order passed by the trial court, the following order is passed: a) The appellants will deposit an amount of Rs.10 lakhs within three weeks from today before the trial court; b) The appellants will furnish bank guarantee for an amount of Rs.5 lakhs within the above stipulated time; c) On compliance with the above conditions, the impugned order passed by the court below in I.A.No.191/2008 will stand vacated. d) In the event of non-compliance with the above conditions, the appeal will stand dismissed and the impugned order passed by the court FAO 101/2008 -3- below in I.A.No.191/2008 on 4.3.2008 will govern the parties. With the above directions, the appeal is disposed of. No costs. ( P.R.Raman, Judge.) (T.R. Ramachandran Nair, Judge.)