IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931 MSA.No. 1 of 2009() ------------------- AS.93/2006 of II ADDL. DISTRICT COURT, TRIVANDRUM IP.6/2003 of SUB COURT,NEYYATTINKARA .................... APPELLANT /RESPONDENT/PETITIONER ----------------------------------------------------------- SASIKUMARAN NAIR S/O CHELLAPPAN PILLAI SARALA BHAVAN KOLLAYIL PAKUTHY,NADOORKOLA DESOM KOLLAYIL VILLAGE, NEYYATTINKARA THIRUVANANTHAPURAM BY ADV. SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.MANU V. RESPONDENTS/APPELLANT AND RESPONDENTS 2 TO 4/COUNTER PETITIONERS 1 TO 3 ---------------------------------------------------------------------------------------------------------------------- 1. PRABHAKARAN S/O GOVINDAPANICKER S.N.BHAVAN KADAVATTARAM DESOM KRISHNAPURAM WARD NEYYATTINKARA, THIRUVANANTHAPURAM 2. LALITHAMBARAN NAIR, S/O VELAYUDHAN NAIR AMBADI, MUDAVOOR PARA PALLICHAL VILAGE, NEYYATTINKARA THIRUVANANTHAPURAM 3. VELAYUDHAN NAIR, S/O RAMAKRISHNAN NAIR, VYSAKH, NARAYANAPURAM AMARAVILA KOLLAYIL VILLAGE NEYYATTINKARA, THIRUVANANTHAPURAM 4. RECEIVER, NEYYATTINKARA SUB COURT NEYYATTINKARA, THIRUVANANTHAPURAM THIS MISC. SECOND APPEAL HAVING COME UP FOR ADMISSION ON 23/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER IN I.A. NO. 1613 OF 2009 IN M.S.A. NO. 1 OF 2009 DISMISSED SD/- HARUN-UL-RASHID, JUDGE 23.7.2009 HARUN-UL-RASHID, J. ---------------------------------------- M.S.A.No. 1 of 2009 ---------------------------------------- Dated this the 23rd day of July, 2009 JUDGMENT The Miscellaneous Second Appeal is directed against the judgment and decree in A.S. No. 93/2006 on the file of the Additional District Court-II Thiruvananthapuram, which inturn arises from the order in Insolvency Petition No. 6/2003 on the file of the Sub Court, Neyyattinkara. The trial court allowed the Insolvency Petition (hereinafter referred to as the I.P) In the appeal filed by the 1st respondent the lower appelate court set aside the order of the trial court in the I.P . Hence the Second appeal .The petitioner in the I.P is the appellant herein. The parties hereinafter referred to as appellant and respondents as arrayed in this Miscellaneous Second Appeal 2. The appellant is a debtor. The 1st respondent is the decree holder in O.S. No. 893/2001 on the file of the 1st Additional Munsiff's Court Neyyattinkara. . The said suit was filed for realisation of money and was decreed on the basis of the compromise entered between the appellant and the 1st respondent The 1st respondent filed E.P. No. 182/2003 for realisation of Rs. 27,000/- as per the compromise decree in the said suit. . But the appellant did not pay the amount as per compromise decree in O.S. No. 893/2001, instead he filed I.P No. 6/2003 M.S.A. No. 1 of 2009 -2- 3. According to the appellant he has no assets either movable or immovable except the wearing apparels which would not worth more than Rs. 500/-. It is his case that he had also borrowed Rs. 50,000 each from respondents 2 and 3. 4. The 1st respondent filed objection contending that the I.P is filed without any bonafides, that the appellant colluded with respondents 2 and 3 in order to file the I.P , that respondents 2 and 3 are the appellant's close relatives and that no amount is due to them. The appellant's claim the he owes money to respondents 2 and 3 is a false story. .According to the 1st respondent, having entered into such a compromise, the appellant cannot contend that he is unable to pay the decree amount, that in order to evade arrest and detention in E.P 182/2001 he filed I.P. No.6/2003 seeking to declare him as an insolvent. 5. Respondents 2 and 3 together filed objection contending that the appellant owe Rs. 50,000/- each to them, that their demand for payment of the said sum has been turned down by the appellant and that the I.P was filed without any bonafides and suppressing the fact that the appellant is having both movable and immovable assets. 6. The trial court noted that respondents 2 and 3 are none other than the petitioner's brother-in-law and son of brother- in- law respectively M.S.A. No. 1 of 2009 -3- and that no amount is owed to them by the appellant, that in the absence of any evidence it has to be said that the appellant does not owe any amount to respondents 2 and 3. The trial court also held that even though the appellant owes money only to the 1st respondent, the I.P itself is maintainable since it is shown that the appellant is not able to pay the debt owed to the 1st respondent .Ultimately the trial court declared that the appellant is an insolvent. 7. Aggrieved by the the order of the trial court in the I.P the 1st respondent preferred appeal. The lower appellate court on the basis of the very same materials on record had taken a different view and held that the I.P is without any bonafides and therefore liable to be dismissed The lower appellate court noted that in cross-examination of PW1 (appellant) admitted that that some landed property was purchased by his wife in the year 2002 from her brother vide Ext.B5 sale deed. The said sale deed is seen executed by 12 persons in favour of the wife of the appellant conveying their respective title and interest over 9 Ares and 80 square meters of property after receiving a sale consideration of Rs. 21,000/- The said document is seen executed on 12.7.2002 The lower appellate court held that if his wife has no income or job then it is upon the appellant to establish the source of income and sale consideration especially when the said document is seen executed by her near relatives namely her M.S.A. No. 1 of 2009 -4- brother and others. The lower appellate court observed that the date of execution of the sale deed viz 12.7.2002 also assumes importance for the reason that it was executed just few days before the passing of compromise decree in favour of the 1st respondent herein The lower appellate court was convinced that the property was purchased by utilising the fund of the petitioner in his wife's name, that unless there is satisfactory evidence to show other wise, the burden lies on the appellant who filed the I.P especially when there is fiduciary relationship between the appellant and his wife. It is also evident from the facts and circumstances of this case that respondents 2 and 3 are the appellant's brother- in -law and son of brother-in -law respectively. Several other contentions were also taken into consideration by the lower appellate court on the basis of the evidence adduced by the parties The lower appellate court arrived at the conclusion that the facts, evidence and circumstances shows that there is collusion between the appellant and the respondents 2 and 3 ,that the appellant himself pretended as a person having sufficient capacity to pay the decree amount due to the 1st respondent by filing a compromise petition which resulted in the compromise decree in O.S. No. 893/2001. The lower appellate court also opined that the appellant's own admission coupled with Ext.B5 document would clearly show that the property was purchased by him in the name of his wife and the I.P was filed only to defeat the decree M.S.A. No. 1 of 2009 -5- passed in O.S No. 893/2001 in favour of the 1st respondent. I am of the view that the findings of the lower appellate court are solely on the basis the aforesaid facts In view of the sound reasonings in support of the finding, I think that a different view is not possible other than the view expressed by the lower appellate court. The appellant has failed to urge any sustainable grounds for invoking this Court's Jurisdiction under Section 100 of the C.P.C. No questions of law much less any substantial question of law arises for consideration in this Appeal This appeal fails and dismissed in limine. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- M.S.A. No. 1 of 2009 ---------------------------- JUDGMENT 23rd July, 2009