IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 28TH FEBRUARY 2011 / 9TH PHALGUNA 1932 OP(C).No. 796 of 2011(O) ------------------------ AGAINST THE ORDER DATED IN IA 5135/2010 IN OS.979/2009 of ADDL.SUB COURT,KOLLAM .................... PETITIONER ------------------------------ SHANIL S., AGED 40 YEARS, SON OF LATE SUDHAKARAN, VELLARAMKUNNIL, THEKKEVILA CHERRY, ERAVIPURAM VILLAGE, MANAGING PARTNER, M/S.METRO ENGINEERING AND AUTOMOBILE WORKS, POLAYATHODE, KOLLAM. BY ADV. SRI.SREELAL N.WARRIER SRI.B.RAGHUNANDANAN SMT.A.SREEKALA (VAIKOM) RESPONDENT(S): --------------- 1. SOMAKUMARI, AGED 58 YEARS, W/O.SUGATHAN, AYALATHU VEEDU, KOTTAKKAKOM WARD, KOLLAM WEST VILLAGE, PARTNER, M/S.METRO ENGINEERING AND AUTOMOBILE WORKS, POLAYATHODE, KOLLAM-691001. 2. REEJA SABU, AGED 37 YEARS, D/O.SOMAKUMARI, AYALATHU VEEDU, KOTTAKKAKOM WARD, KOLLAM WEST VILLAGE, PARTNER, M/S.METRO ENGINEERING AND AUTOMOBILE WORKS, POLAYATHODE, KOLLAM-691001. 3. BABURAJ, AGED 48 YEARS, BUSINESSMAN, SON OF GANGADHARAN, BABURAJ SADANAM, VADAKKEKARA MURI, ANGADIKKAL VILLAGE, ANGADIKKAL P.O., ADOOR TALUK, KOLLAM-691001. 4. MR.SHANAVAS KHAN, AGED 58 YEARS, VISHNU MATT, KACHERI DIVISION, KOLLAM WEST VILLAGE, KOLLAM-691001. ADV. SRI.P.B.SURESH KUMAR FOR R1 TO 3 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 28/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------ O.P.(C)No.796 OF 2011 ------------------------------ Dated this the 28th day of February, 2011 JUDGMENT Notice taken by the respondents. Counsel on either side submitted that the Original petition can be heard and disposed of. 2. The petitioner is the plaintiff in O.S.No.979 of 2009 on the file of the Court of the Subordinate Judge, Kollam. The suit is for dissolution of partnership between the plaintiff and the first defendant and for recovery of money from defendants 1 to 3. There is also a prayer for re-conveyance of plaint schedule property from defendants 1 to 3. 3. I.A.No.5135 of 2010 was filed by the plaintiff under Rule 10(2) of Order 1 of the Code of Civil Procedure for impleading the receiver appointed in I.P No.3 of 1100 M.E. as a formal party in the suit. The petitioner/plaintiff did not claim any relief as against the receiver and it was so made clear in the O.P.(C)No.796 OF 2011 2 application. 4. The court below dismissed the application on the ground that no leave was obtained from the court which appointed the receiver for making him a party in the present suit. 5. Learned counsel for the petitioner submitted that the receiver is sought to be impleaded as a formal party and the main purpose is for discovery of documents and facts from the receiver. No relief is claimed against the receiver. It is submitted that in the facts and circumstances of the case, even without leave, the receiver can be made a party. 6. As no relief is claimed against the receiver and receiver is sought to be impleaded as a formal party, I do not think that the court below was right in dismissing the application. The counsel for the petitioner submitted that the insolvency petition was also before the same Sub Court and an application for leave will be filed in that court. This submission is O.P.(C)No.796 OF 2011 3 recorded. If an application for leave is filed by the petitioner, taking into account the peculiar facts and circumstances of the case, the Sub Court shall grant leave. 7. The learned counsel for the respondents pointed out that this court in FAO No.254 of 2010 directed the learned Subordinate Judge to dispose of the suit on or before 31.3.2011. 8. In the facts and circumstances of the case, the order dated 11th January, 2011 passed by the court below is set aside and I.A.No.5135 of 2010 in O.S.No.979 of 2009 is allowed. If the petitioner files an application for leave in I.P No.3 of 1100 M.E, the Additional Sub Court, Kollam shall grant leave to make the receiver a party in O.S.No.979 of 2009. K.T.SANKARAN, JUDGE. cms