Kerala High Court
Anilkumar Palathinkal vs Kitex Garments Ltd on 1 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
MONDAY, THE 01ST DAY OF FEBRUARY 2021 / 12TH MAGHA,1942
OP(C).No.228 OF 2021
AGAINST THE ORDER/JUDGMENT IN CMA 2/2020 OF SUB COURT, PERUMBAVOOR
PETITIONER/APPELLANT:
ANILKUMAR PALATHINKAL
AGED 59 YEARS
S/O.LATE P.U. GEORGE,
PALATHINKAL HOUSE, PROPRIETOR,
M/S.VIRGO AGENCIES,
PALATHINKAL BUILDING, NORTH FORT GATE,
TRIPUNITHURA, KANAYANNUR TALUK,
ERNAKULAM DISTRICT.
BY ADV. SRI.VARGHESE C.KURIAKOSE
RESPONDENT/RESPONDENT:
KITEX GARMENTS LTD
REGISTERED OFFICE AT KIZHAKKAMBALAM,
KIZHAKKALAM VILLAGE,
KUNNATHUNADU TALUK,
REP.BY ITS AUTHORISED SIGNATORY AND
ADMINISTRATIVE MANAGER,
SAJEEV KOSHY, AGED 58 YEARS PIN- 683 503
R1 BY ADV. SRI.BLAZE K.JOSE
R1 BY ADV. SHRI.JUDY JOSE
R1 BY ADV. SMT.URMILA ZACHARIA
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 01.02.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C).No.228 OF 2021
2
JUDGMENT
Dated this the 1st day of February 2021
The petitioner herein suffered an ex-parte
decree in OS.No.360/2014 on the file of the Munsiff
Court, Perumbavoor. The respondent/plaintiff was
found entitled to realize a sum of Rs.2,62,500/-
with 12% interest from 22.12.2010 till the date of
the decree and thereafter with 6% interest till its
realization. The respondent/plaintiff was also
found entitled to costs in the suit.
2. The petitioner filed an application for
setting aside the ex-parte decree and an
application to condone the delay in filing the
application to set aside the ex-parte decree which
came to be dismissed. The petitioner therefore
preferred CMA.No.2/2020 before the Subordinate
Judges Court, Perumbavoor and the same is pending.
3. It appears that certain property of the
petitioner was ordered to be conditionally attached
in an application for attachment before judgment in
OP(C).No.228 OF 2021
OS.No.360/2014. It is submitted that the property
which was subject matter of the attachment has
subsequently been acquired for the purposes of the
Kochi Metro and that an amount of Rs.13,67,769/-
under Ext.P9 award and Rs.8,78,274/- under Ext.P10
award have been deposited by the Kochi Metro.
4. The learned counsel submits that since the
amount which has been decreed in OS.No.360/2014 is
only Rs.2,62,500/- together with interest and
costs, no prejudice will caused to the respondent,
if the petitioner is permitted to deposit an amount
to cover the decree debt on condition that he will
be permitted to withdraw the amounts deposited by
Kochi Metro towards acquisition cost in respect of
the land belonging to the petitioner.
5. The learned counsel for the respondent would
however submit that though the petitioner's
application for setting aside the ex-parte decree
was dismissed by the Munsiff Court, since he has
challenged that order by filing an appeal before
OP(C).No.228 OF 2021
the Subordinate Judges Court, Perumbavoor and if
the ex-parte decree is set aside, the decree will
have to be modified as the date of the decree will
then change, in which case, he will be entitled to
interest at the contractual rate at least till the
date of the decree.
Considering the facts and circumstances of the
case, I am of the opinion that the petitioner can
be permitted to withdraw the amounts deposited as
compensation for land acquisition in terms of
Exts.P9 and P10 on the petitioner depositing a sum
of Rs. 7 lakhs before the Munsiff Court,
Perumbavoor (court which passed the decree in
OS.No.360/2014). It is suggested by counsel on both
sides that the petitioner can be required to make
the deposit by opening a Fixed Deposit in a
nationalized Bank or in Government Treasury and by
producing original of the receipt along with the
lien marked in favour of the Munsiff court,
Perumbavoor, before that court. It is therefore
OP(C).No.228 OF 2021
ordered that if the petitioner makes a deposit of
Rs.7 Lakhs either in a Fixed Deposit in a
nationalized Bank or before the Government Treasury
and produces the receipt together with a lien
marked in favour of Munsiff Court Perumbavoor,
before that Court, the petitioner will be permitted
to withdraw the amounts deposited in his name under
Exts.P9 and P10 if necessary by lifting the order
of conditional attachment. The petitioner
undertakes that the Fixed Deposit will be renewed
from time to time until the matter is finally
decided by the Munsiff Court or any appellate
Court.
The Original Petition will stand disposed of as
above.
Sd/-
GOPINATH P.
JUDGE
Sn
OP(C).No.228 OF 2021
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE PHOTOSTAT COPY OF THE PLAINT IN
O.S.NO.360/2014 ON THE FILES OF MUNSIFF'S
COURT, PERUMBAVOOR DATED 25.8.2014.
EXHIBIT P2 TRUE PHOTOSTAT COPY OF THE ATTACHMENT
APPLICATION FILED AS I.A.NO.1955/2014 IN
O.S.NO.360/2014 ON THE FILES OF MUNSIFF'S
COURT, PERUMBAVOOR DATED 25.8.2014
EXHIBIT P3 TRUE PHOTOSTAT COPY OF THE ATTACHMENT
SCHEDULE IN O.S. NO.360/2014 ON THE FILES
OF MUNSIFF'S COURT, PERUMBAVOOR DATED
25.8.2014
EXHIBIT P4 TRUE PHOTOSTAT COPY OF THE JUDGMENT IN
O.S.NO.360/2014 ON THE FILES OF MUNSIFF'S
COURT, PERUMBAVOOR DATED 29.10.2014
EXHIBIT P5 TRUE PHOTOSTAT COPY OF THE APPLICATION AS
I.A.NO.146/2017 IN O.S.NO.360/2014 ON THE
FILES OF MUNSIFF COURT, PERUMBAVOOR DT.
11.1.2017
EXHIBIT P6 TRUE PHOTOSTAT COPY OF THE APPLICATION AS
I.A.NO.147/2017 IN O.S.NO.360/2014 ON THE
FILES OF MUNSIFF COURT, PERUMBAVOOR DT.
11.1.2017
EXHIBIT P7 TRUE PHOTOSTAT COPY OF THE ORDER IN
I.A.NO.146/2017 IN O.S.NO.360/2014 ON THE
FILES OF MUNSIFF COURT, PERUMBAVOOR DT.
27.7.2019
EXHIBIT P8 TRUE PHOTOSTAT COPY OF THE ORDER IN
I.A.NO.147/2017 IN O.S.NO.360/2014 ON THE
FILES OF MUNSIFF COURT, PERUMBAVOOR DT.
27.7.2019
EXHIBIT P9 TRUE PHOTOSTAT COPY OF THE AWARD PASSED IN
LAC NO.193/2019-A PASSED BY SPECIAL
TAHSILDAR (LA) NO.1, KOCHI METRO RAIL
PROJECT, CIVIL STATION, KAKKANADU DATED
23.9.2019
OP(C).No.228 OF 2021
EXHIBIT P10 TRUE PHOTOSTAT COPY OF THE AWARD PASSED IN
LAC NO.193/2019-B PASSED BY SPECIAL
TAHSILDAR (LA) NO.1, KOCHI METRO RAIL
PROJECT, CIVIL STATION, KAKKANADU DATED
23.9.2019
EXHIBIT P11 TRUE PHOTOSTAT COPY OF THE E.P.FILED AS
E.P.NO.243/2015 BEFORE MUNSIFF'S COURT,
ERNAKULAM DATED 29.7.2015
EXHIBIT P12 TRUE PHOTOSTAT COPY OF THE I.A.NO.3/2020 IN
CMA NO.2/2020 BEFORE THE HON'BLE SUB COURT,
PERUMBAVOOR DATED 30.11.2020
RESPONDENT'S/S EXHIBITS: NIL
Sn
//TRUE COPY// PA TO JUDGE
