Tomy Sebastian vs Tomy Sebastian
2021 Latest Caselaw 10855 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                          PRESENT

          THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

WEDNESDAY, THE 31ST DAY OF MARCH 2021 / 10TH CHAITHRA, 1943

                    OP(C).No.382 OF 2021

AGAINST THE COMMON ORDER IN IA 1/2020 IN IA 8685 OF 2017 IN
  OS 1379/2017 DATED 15-01-2021 OF III ADDITIONAL MUNSIFF
                 COURT(RENT CONTROL), EKM

PETITIONERS/RESPONDENTS/PETITIONER/PLAINTIFFS:

      1     TOMY SEBASTIAN
            AGED 55 YEARS
            S/O. MANI DEVASSYA, VENGACKAL HOUSE, THUTHIYOOR,
            KAKKANAD KARA, KAKKANAD P.O., KAKKANAD VILLAGE,
            KANAYANNUR TALUK, ERNAKULAM DISTRICT,PIN-682 030

      2     JOLLY TOMY SEBASTIAN
            AGED 50 YEARS
            W/O. TOMY SEBASTIAN, VENGACKAL HOUSE,
            THUTHIYOOR, KAKKANAD KARA, KAKKANAD P.O.,
            KAKKANAD VILLAGE, KANAYANNUR TALUK, ERNAKULAM
            DISTRICT,PIN-682 030

            BY ADVS.
            SRI.K.S.FRIJO
            SRI.S.HIRUSHEEKESAN
            SRI.SOLOMAN BABY

RESPONDENT/PETITIONER/RESPONDENT/DEFENDANT:

            MINI HARIKUMAR
            W/O. HARIKUMAR, AGED 50 YEARS, LIC AGENT,THUNDIL
            HOUSE, KAKKANADU KARA, ATHANI, KUSUMAGIRI P.O.,
            KAKKANAD VILLAGE, KANAYANNIUR TALUK, ERNAKULAM
            DISTRICT,PIN-682 030

            BY ADV. SRI.BIJU ABRAHAM

     THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 29-03-
2021, THE COURT ON 31-03-2021 DELIVERED THE FOLLOWING:
 O.P.(C)No.382 of 2021

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          Dated this the 31st day of March, 2021


                          J U D G M E N T

The plaintiffs in O.S.No.1379/2017 on the file

of Third Additional Munsiff, Ernakulam, are the

petitioners in this original petition.

2. The sole defendant in the suit offered

security for an amount of Rs.5,50,000/- being the

principal plaint amount seeking to vacate the

conditional order of attachment before judgment

passed in the suit. The petitioners objected to

acceptance of the security contending that the

security offered is not adequate to satisfy the

decree that may be passed in the suit, since the

suit claim includes 18% of interest per annum also.

I.A.No.1/2020 filed by the defendant for an order

seeking acceptance of security, was allowed

rejecting the objections raised by the plaintiffs.

3. The impugned order dated 15.1.2021 passed O.P.(C)No.382 of 2021

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in this respect is under challenge in this original

petition.

4. I heard the learned counsel for the

petitioners as well as the learned counsel for the

respondent.

5. The contention of the petitioners is that

unless the value of security covers not only the

proposed plaint amount but interest also, the

plaintiffs/petitioners may not be able to enjoy the

decree that may be passed in the suit.

6. The learned counsel for the respondent

sought to sustain the impugned order contending

that what the Order XXXVIII Rule 5 of CPC provides

is for furnishing of security for the plaint amount

which cannot include pendente lite interest. In

order to support his contention, he relied on a

decision reported in Smitha v. P.C.Varghese & anr.

(2016(2) KHC 793).

O.P.(C)No.382 of 2021

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7. I went through the aforesaid decision which

does not lay down any such law as canvassed by the

learned counsel for the respondent.

8. It is obvious from the Scheme underlying

Chapter XXXVIII and Rules 5 and 6 therein that the

defendant, who seeks to get rid of an order of

conditional attachment before judgment, has to

furnish such an amount of security as is enough to

satisfy the decree. The decree presupposes the

entire suit claim which includes interest as well.

9. Of course, what could be the rate of

interest which the court may be empowered in the

suit is a different question. In the present suit,

the plaintiff has claimed 18% of interest. That is

a matter which has to be decided by the court below

concerned, having regard to the questions of law

and facts. The plaintiff in the suit has to

establish a prima facie case in regard to the claim O.P.(C)No.382 of 2021

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for interest pendente lite.

10. The court below has not applied its mind on

this aspect while passing the impugned order. The

view that the security amount shall stand limited

solely to the principal plaint amount, cannot be

endorsed.

11. Having heard the submissions made by the

learned counsel appearing on both sides, I am of

the view that the impugned order cannot be

sustained and the matter has to go back to the

court below for fresh consideration in the light of

the view expressed above.

In the result, original petition succeeds and

the impugned order is set aside. The court below

shall fix the amount of security liable to be

furnished inclusive of the pendente lite interest,

after hearing the parties on either side. A

decision in this respect shall be taken by the O.P.(C)No.382 of 2021

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court below as expeditiously as possible and

dispose of the application for attachment before

judgment.

All pending interlocutory applications are

closed.

Sd/-

T.V.ANILKUMAR JUDGE ami/ O.P.(C)No.382 of 2021

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APPENDIX

PETITIONERS' EXHIBITS:

EXHIBIT P1 THE TRUE COPY OF THE PLAINT FILED BY THE PETITIONERS IN OS NO.1379 OF 2017 ON THE FILES OF 3RD ADDITIONAL MUNSIFF'S COURT, ERNAKULAM

EXHIBIT P2 THE TRUE COPY OF ATTACHMENT PETITION FILED BY THE PETITIONERS IN IA NO.8685 OF 2017 IN OS NO.1379 OF 2017 DATED 18.12.2017 ON THE FILES OF 3RD ADDITIONAL MUNSIFF'S COURT, ERNAKULAM

EXHIBIT P3 THE TRUE COPY OF WRITTEN STATEMENT IN OS NO.1379 OF 2017 FILED BY THE RESPONDENT ON THE FILES OF 3RD ADDITIONAL MUNSIFF'S COURT, ERNAKULAM

EXHIBIT P4 THE TRUE COPY OF IA NO.1 OF 2020 IN IA NO.8685 OF 2017 IN OS NO.1379 OF 2017 ON THE FILES OF 3RD ADDITIONAL MUNSIFF'S COURT, ERNAKULAM FILED BY THE RESPONDENT

EXHIBIT P5 THE TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONERS TO IA NO.1 OF 2020 IN IA NO.8685 OF 2017 IN OS NO.1379 OF 2017

EXHIBIT P6 THE TRUE COPY OF THE IMPUGNED ORDER IN IA NO.1 OF 2020 IN IA NO.8685 OF 2017 IN OS NO.1379 OF 2017 DATED 15.01.2021 PASSED BY THE 3RD ADDITIONAL MUNSIFF'S COURT, ERNAKULAM