IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 23RD DAY OF JUNE 2022 / 2ND ASHADHA, 1944
OP(C) NO. 252 OF 2021
AGAINST THE ORDER DATED 23.09.2020 IN I.A.NO.8/2020 IN OS
27/2020 OF ADDITIONAL SUB COURT,KOTTAYAM
PETITIONERS/ COUNTER PETITIONERS/PLAINTIFFS:
1 SHAJI PACHERIYIL DEVASIA ALIAS SHAJI P.D.,
AGED 52 YEARS,
SON OF K.M. DEVASIA, KOIPURATHU HOUSE,
AYARKUNNAM VILLAGE, KOTTAYAM DISTRICT,
PIN-686 019
2 M/S. STAR CHEMICALS,
THEKKUMKATTIL BUILDINGS,
GOOD SHEPHERD ROAD, KOTTAYAM VILLAGE,
KOTTAYAM TALUK, KOTTAYAM DISTRICT,
KOTTAYAM P.O, PIN-686 001,
REPRESENTED BY ITS PROPRIETOR-FIRST PETITIONER,
SRI. SHAJI PACHERIYIL DEVASIA ALIAS SHAJII P.D,
AGED 52 YEARS,
SON OF K.M. DEVASIA,
KOIPURATHU HOUSE, AYARKUNNAM VILLAGE,
KOTTAYAM DISTRICT, PIN-686 019
BY ADV LUKE J CHIRAYIL
RESPONDENTS/ PETITIONERS/ DEFENDANTS:
1 JOY THOMAS,
AGED ABOUT 60 YEARS,
SON OF THOMAS, HOUSE NO. 2/123,
PALLIKKAPARAMBIL HOUSE, KURICHY VILLAGE,
CHANGANACHERRY TALUK, KOTTAYAM DISTRICT,
PIN-686 532
2 JOJI JOY,
AGED 51 YEARS,
WIFE OF JOY THOMAS, HOUSE NO. 2/123,
PALLIKKAPARAMBIL HOUSE,
KURICHY VILLAGE, CHANGANACHERRY TALUK,
KOTTAYAM DISTRICT, PIN-686 532
3 M/S. EDEN RUBBERS,
DIVINE RUBBER BUILDING,
KURICHY OUTPOST, KURICHY VILLAGE,
O.P.(C)No.252/2021
-:2:-
CHANGANACHERRY TALUK, KOTTAYAM DISTRICT,
PIN-686 549, REPRSENTED BY ITS PARTNERS-FIRST
AND SECOND RESPONDENTS MR. JOY THOMAS AND MRS.
JOJI JOY, HOUSE NO. 2/123,
PALLIKKAPARAMBIL HOUSE,
KURICHY VILLAGE, CHANGANACHERRY TALUK,
KOTTAYAM DISTRICT, PIN-686 532
4 M/S. DIVINE RUBBERS,
DIVINE RUBBER BUILDING, KURICHY OUTPOST,
KURICHY VILLAGE, CHANGANACHERRY TALUK,
KOTTAYAM DISTRICT, REPRESENTED BY ITS
PROPRIETOR, SRI. JOY THOMAS,
AGED ABOUT 60 YEARS, SON OF THOMAS,
HOUSE NO. 2/123, PALLIKKAPARAMBIL HOUSE,
KURICHY VILLAGE, CHANGANACHERRY TALUK,
KOTTAYAM DISTRICT, PIN-686 532
BY ADVS. SRI.SAIJO HASSAN
SRI.BENOJ C AUGUSTIN
SRI.RAFEEK. V.K.
SRI.U.M.HASSAN
SMT.P.PARVATHY
SMT.SURYA P SHAJI
SMT.AATHIRA SUNNY
SHRI.MANAS P HAMEED
SHRI.ELDHO.N.MONCY
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
23.06.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(C)No.252/2021
-:3:-
Dated this the 23rd day of June,2022
JUDGMENT
The learned counsel appearing for the petitioners submits that since the suit has been transferred to the Commercial Court, he may be granted leave to withdraw this original petition and file a fresh petition to challenge Ext.P6 order.
On a perusal of Ext.P6, it is seen that the order is passed under Order XXXVIII Rule 6(2) of the Code of Civil Procedure, 1908(in short,'Code'), whereby, the court below has accepted the security furnished by the respondent. An order passed under Order XXXVIII Rule 6 of the Code is appealable under Order XLIII Rule(1)(q) of the Code. Thus, the leave sought for by the petitioner to withdraw the original petition and file O.P.(C)No.252/2021 -:4:- a fresh original petition cannot be granted.
Nonetheless, this original petition is dismissed, without prejudice to the right of the petitioners to invoke the statutory remedy as prescribed under the Code.
Sd/-
C.S.DIAS,JUDGE
DST/23.06.22 //True copy/
P.A.To Judge
O.P.(C)No.252/2021
-:5:-
APPENDIX
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S. NO. 27
OF 2020 ON THE FILES OF HON'BLE ADDITIONAL SUBORDINATE JUDGE'S COURT, KOTTAYAM.
EXHIBIT P2 TRUE COPY OF THE PETITION NUMBERED AS I.A.NO. 1 OF 2020 IN O.S. NO. 27 OF 2020, ON THE FILES OF THE HONBLE ADDITIONAL SUBORDINATE JUDGE'S COURT, KOTTAYAM.
EXHIBIT P3 TRUE COPY OF THE ORDER DATED 17.02.2020 IN I.A. NO. 1 OF 2020 IN O.S. NO. 27 OF 2020, ON THE FILES OF THE HON'BLE ADDITIONAL SUBORDINATE JUDGE'S COURT, KOTTAYAM.
EXHIBIT P4 TRUE COPY OF THE PETITION NUMBERED AS I.A. NO. 4 OF 2020 IN O.S. NO. 27 OF 2020, ON THE FILES OF THE HON'BLE ADDITIONAL SUBORDINATE JUDGE'S COURT, KOTTAYAM.
EXHIBIT P5 TRUE COPY OF THE FIXED DEPOSIT RECEIPT IN FAVOUR OF THE FIRST DEFENDANT AT FEDERAL BANK,KURICHY BRANCH FOR AN AMOUNT OF RS. 7,00, 000/- (SEVEN LAKH RUPEES ONLY).
EXHIBIT P6 TRUE COPY OF THE FIXED DEPOSIT RECEIPT IN FAVOUR OF THE FIRST DEFENDENT AT FEDERAL BANK, KURICHY BRANCH FOR AN AMOUNT OF RS. 8,00,000/- (EIGHT LAKH RUPEES ONLY) EXHIBIT P7 TRUE COPY OF THE COUNTER AFFIDAVIT DATED 17.08.2020, FILED BY THE FIRST PLAINTIFF AGAINST EXT. P4.
O.P.(C)No.252/2021 -:6:- EXHIBIT P8 TRUE COPY OF THE PETITION NUMBERED AS IA. NO. 8 OF 2020 IN O.S NO. 27 OF 2020 ON THE FILES OF THE HON'BLE ADDITIONAL SUBORDINATE JUDGE'S COURT, KOTTAYAM.
EXHIBIT P9 TRUE COPY OF THE FIXED DEPOSIT RECEIPT IN FAVOUR OF THE FIRST DEFENDENT AT FEDERAL BANK, KURICHY BRANCH FOR AN AMOUNT OF RS. 3,30,000/- (THREE LAKH THIRTY THOUSAND RUPEES ONLY).
EXHIBIT P10 TRUE COPY OF THE PETITION NUMBERED AS I.A. NO. 5 02 2020 IN O.S. NO. 27 OF 2020 ON THE FILES OF THE HON'BLE ADDITIONAL SUBORDINATE JUDGE'S COURT, KOTTAYAM.
EXHIBIT P10 A TRUE COPY OF THE OBJECTION DATED 26.08.2020, FILED AGAINST EXT. P10 BY THE FIRST DEFENDANT FOR HIMSELF AND ON BEHALF OF OTHER DEFENDANTS.
EXHIBIT P11 TRUE COPY OF THE PETITION NUMBERED AS I.A. NO. 6 OF 2020 IN O.S.NO. 27 OF 2020 ON THE FILES OF THE HON'BLE ADDITIONAL SUBORDINATE JUDGE'S COURT, KOTTAYAM.
EXHIBIT P11 A TRUE COPY OF THE OBJECTION DATED 11.09.2020, FILED BY THE FIRST DEFENDANT FOR HIMSELF AND ON BEHALF OF OTHER DEFENDANTS AGAINST EXT. P11.
EXHIBIT P12 TRUE COPY OF THE ORDER DATED 23.09.2020 IN I.A NO. 8 OF 2020 IN O.S. NO. 27OF 2020, ON THE FILES OF THE HON'BLE ADDITIONAL SUBORDINATE JUDGE'S COURT, KOTTAYAM.
RESPONDENTS' EXHIBITS: NIL