IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 5TH FEBRUARY 2008 / 16TH MAGHA 1929 WP(C).No. 4230 of 2008(C) ------------------------- AGAINST THE ORDER DATED 02/06/2007 IN IA 843/07 IN OS.176/2006 of ADDL.SUB COURT, ALAPPUZHA .................... PETITIONER: ---------------------- N.A.MOHAMMED KUNJU, AGED 50 YEARS, S/O.LATE N.M.ABDUL SALAM, NARANJI HOUSE, C.C.S.B.ROAD, CIVIL STATION WARD, ALAPPUZHA. BY ADV. SRI.A.T.ANILKUMAR RESPONDENTS: ------------------------- 1. ALAPPUZHA MUNICIPALITY REPRESENTED BY ITS SECRETARY. 2. HABEEBULLA, RAJEENA MANZIL, ALISSERRY WARD, ALAPPUZHA, REP. BY POWER OF ATTORNEY HOLDER REMLATH, SUKINAS, ALISSERRY WARD, ALAPPUZHA. R1 BY SRI.M.K.CHANDRAMOHAN DAS, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/02/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J ===================== W.P.(C) No.4230 OF 2008 ===================== Dated this the 5th day of February 2008 JUDGMENT This writ petition is preferred against the order of the Addl.Sub Court, Alappuzha in I.A.No.1766 of 2007 in O.S.No.176 of 2006. The plaintiff filed a suit for realisation of damages against the defendant with a petition also to attach the property to secure the decree, that is to be obtained in his favour if ultimately the court ordered attachment. Subsequently, the defendant furnished security for Rs.51 lakhs. Now the grievance is that the defendant is withdrawing the interest for this amount from the bank and therefore it will cause difficulty in realising the decreetal amount. It can be seen from the order of the learned Sub Judge that the order of attachment was vacated on deposit of the amount and the court allowed the defendant to collect the interest against the fixed deposit receipt by its order dated 2.6.2007, which was duly communicated to the bank. After a lapse of 4 months, the plaintiff again moved an application that if the interest is permitted to be withdrawn, it will defeat its interest. The court below found that the claim itself is for an amount of Rs.50 lakhs. It is WP(C) 4230/2008 -:2:- a case for damages and it is not an admitted fact that the plaintiff is entitled to so much amount as damages. These are all matters which requires consideration in the hands of the court below in the suit. Whenever a suit is filed for damages and when the court satisfies its conscience by getting deposited the amount which is claimed in the plaint, there shall not be further embargo and limitation when the court passes ancillary orders. When the entire amount of Rs.50 lakhs plus 1 lakh is with the bank and the fixed deposit receipt is in the court and only a direction is given to disburse the interest, I feel it is only an equitable order that the court has passed. Now the only attempt of the plaintiff is to make the defendant not to get anything from this amount which appears to be not reasonable. Therefore, I do not find any mistake committed by the court below in retaining Rs.51 lakhs deposited with it and only giving a direction to the bank to give interest to the defendant. The security can be only for the amount that is to be quantified in the suit and when the amount claimed in the plaint itself and Rs.1 lakh more is deposited the apprehension entertained by the plaintiff cannot be said to be reasonable. Therefore I WP(C) 4230/2008 -:3:- decline jurisdiction and dismiss the writ petition. M.N.KRISHNAN, JUDGE Cdp/-