Babu Abraham Ninan vs Regi Mathew
2023 Latest Caselaw 5906 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
              THE HONOURABLE MR. JUSTICE P.SOMARAJAN
     WEDNESDAY, THE 24TH DAY OF MAY 2023 / 3RD JYAISHTA, 1945
                      OP(C) NO. 1048 OF 2023
AGAINST THE ORDER/JUDGMENT IN I.A.NO. 8/2023 IN OS 15/2022 OF SUB
                        COURT, CHENGANNUR
PETITIONERS/PETITIONERS IN IA.8/2023/DEFENDANTS IN O.S.NO.15/2022:

    1     BABU ABRAHAM NINAN, AGED 69,
          S/O.K.I.NINAN, KADUVETTOOR ILLAM, PANDANADU P.O,
          VANMAZHY, PANDANAD VILLAGE, CHENGANNUR TALUK,
          ALAPPUZHA DISTRICT - 689506
    2     DR. BIPIN NINAN ABRAHAM, AGED 32,
          S/O. BABU ABRAHAM NINAN, KADUVETTOOR ILLAM, PANDANADU
          P.O, VANMAZHY, PANDANAD VILLAGE, CHENGANNUR TALUK,
          ALAPPUZHA DISTRICT - 689506 REPRESENTED BY BABU ABRAHAM
          NINAN POWER OF ATTORNEY HOLDER- FIRST PETITIONER
          BY ADVS.
          V.PHILIP MATHEWS
          E.RADHAKRISHNAN
          ASHISH MATHEW JOHN
          MATHEWS PHILIP V.
          JOHNSON K.KURIEN
          P.K.AJITHKUMAR


RESPONDENT/RESPONDENT IN IA NO.8/2022/PLAINTIFF IN OS.15/2022:

          REGI MATHEW, AGED 49,
          S/O.M.C.MATHEW, RESIDING AT: VAYALIPURETHU HOUSE,
          VANMAZHY, PANDANAD VILLAGE, CHENGANNUR TALUK,
          ALAPPUZHA DISTRICT - 689506
          REPRESENTED BY HIS POWER OF ATTORNEY HOLDER,
          M.C.MATHEW, AGED 76, S/O.THOMAS CHERIAN, VAYALIPURETHU
          MADUKKOLIL HOUSE, VANMAZHY, PANDANAD VILLAGE,
          CHENGANNUR TALUK, ALAPPUZHA DISTRICT - 689506
     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 24.05.2023,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(C) NO. 1048 OF 2023

                                           2


                                    JUDGMENT

A suit based on a dishonoured cheque for

recovery of the amount due was filed by the

plaintiff along with yet another prayer for setting

aside two settlement deeds alleged to have been

executed by the debtor/defendant in favour of his

son several years back (2017 and 2018) and suit was

filed in the year 2022. It is not a suit under

Section 53 of the Transfer of Property Act. It is

a mere suit for recovery of the money due under the

dishonoured cheque. Hence, there is no cause of

action as far as the second and third reliefs

incorporated in the plaint for setting aside the

settlement deed of the years 2017 and 2018. On

that ground, an application was submitted under

Order 7 Rule 11 CPC for rejecting the plaint for

want of cause of action for the said reliefs. But,

it was dismissed by the trial court under Ext.P9.

2. Even going by the plaint, it is clear that OP(C) NO. 1048 OF 2023

there is no cause of action for the reliefs B and C

in the plaint for setting aside the settlement deed

of the years 2017 and 2018 and the consequential

reliefs thereof. Further, the plaintiff has no

locus standi to challenge the same, except under

Section 53 of the Transfer of Property Act or by

initiating insolvency proceedings based on an act

of insolvency. No such proceedings was so far

initiated. But it is not permissible to reject the

plaint in part so far as B and C reliefs are

concerned under Order VII Rule 11 C.P.C.. Then the

matter would stand governed by Order VI Rule 16

C.P.C. as laid down by the Apex Court in Sejal

Glass Limited v. Navilan Merchants Private Limited

[(2018) 11 SCC 780]. The trial court ought to

have struck off reliefs B & C from the plaint under

Rule 16 of Order VI C.P.C, hence liable to be

rectified by exercising the extraordinary

jurisdiction under Article 227 of the Constitution.

The order of the trial court dismissing the OP(C) NO. 1048 OF 2023

application will stand set aside and ordered to

strike off reliefs B and C from the plaint and to

proceed with the suit against relief 'A' alone.

The O.P.(C) is allowed accordingly.

Sd/-

P.SOMARAJAN JUDGE msp OP(C) NO. 1048 OF 2023

APPENDIX OF OP(C) 1048/2023

PETITIONER EXHIBITS Exhibit P 1 COPY OF PLAINT IN O.S.NO.15/2022 ON THE FILE OF SUB COURT, CHENGANNUR Exhibit P 2 COPY OF THE CHEQUE DATED 20-04-2017 DRAWN ON CITI BANK. DUBAI -U.A.E Exhibit P 3 COPY OF I.A.NO.2/2022 FILED BY THE SECOND RESPONDENT IN O.S.NO.15/2022 Exhibit P 4 COPY OF THE OBJECTION FILED BY THE PETITIONERS IN I.A.NO.2/2022 Exhibit P 5 COPY OF ORDER DATED 17-11-2022 PASSED BY THE SUB COURT, CHENGANNUR IN I.A.NO.2/2022 IN O.S.NO.15/2022 Exhibit P 6 COPY OF JUDGMENT DATED 12-01-2023 PASSED IN F.A.O NO.154/2022 Exhibit P 7 COPY OF I.A.NO.8/2023 FILED BY THE PETITIONERS IN O.S.NO.15/2022 Exhibit P 8 COPY OF OBJECTION FILED BY THE RESPONDENT IN I.A.NO.8/2023 Exhibit P 9 COPY OF ORDER DATED 29-03-2023 PASSED BY THE SUB COURT, CHENGANNUR IN I.A.NO.8/2023 IN O.S.NO.15/2022