Kerala High Court
Jaison Paulson vs Kj John on 3 October, 2024
OP(C) No.2468/2023 1/7
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
Thursday, the 3rd day of October 2024 / 11th Aswina, 1946
IA.NO.1/2024 IN OP(C) NO. 2468 OF 2023
EP 73/2019 OF ASSISTANT SESSIONS COURT/PRINCIPAL SUB COURT / COMMERCIAL COURT,
ERNAKULAM, ERNAKULAM
APPLICANT/PETITIONER:
JAISON PAULSON, AGED 48 YEARS, S/O THOMAS PORUTHUKKARAN, PROPRIETOR,
JAISON'S FITNESS FIRST,C.C.34/2013 A1, A2, A3, KOLAARA ESTATE, NEAR
OBERON MALL, NH BYE-PASS, EDAPPALLY,KOCHI-682024, REP BY POWER OF
ATTORNEY HOLDER, GEORGE M.D, AGED 60, S/O DEVASSY VAREED,
VADAKKUMCHERRY HOUSE, THURAVOOR P.O, ANGAMALY, ERNAKULAM, PIN -
683572
RESPONDENT/RESPONDENT:
KJ JOHN, AGED 75 YEARS, BUSINESS, S/O LATE JOSEPH, 35/88, KOLAARA
VILLA, PUTHENPURAKKAL ROAD, PALARIVATTOM P.O, KOCHI, PIN - 682025
Application praying that in the circumstances stated in the
affidavit filed therewith the High Court be pleased to grant enlargement
of time to pay the balance decree debt for a period of another four months
starting from 10.11.2024, to comply with the directions in the Judgement
passed in O.P. (civil) NO. 2468/2023 dated 12/12/2023, to meet the ends of
justice.
This Application coming on for orders upon perusing the application
and the affidavit filed in support thereof and this court's judgment dated
12.12.2023, and upon hearing the arguments of M/S JESWIN P VARGHESE,
Advocates for the petitioners and of M/S Basil Mathew, SRI.NINAN JOHN,
SRI.AJAY KRISHNAN S, SMT. SANJANA SARA VARGHESE ANNIE, SMT. ROSEMARIA
JOHNSON, SMT.ARYA A.R., ANJITHA JOBI Advocates for the respondents, the
court passed the following:
ORDER
C. JAYACHANDRAN, J.
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IA.NO.1 OF 2024
IN
OP(C) No. 2468 OF 2023
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Dated this the 3rd day of October,2024
O R D E R
The petitioner in the instant interlocutory
application seeks further installments to pay off
the decree debt covered by Ext.P7. Heard the learned
counsel for the petitioner and the respondent.
2. Learned counsel for the petitioner would submit
that by virtue of the judgment in OP(C)No.2468/2023,
this court granted ten equal installments to the
petitioner to pay off the amount, which is the
subject matter of EP.NO.73/2019, pending before the
Commercial Court, Ernakulam. The learned counsel
would invite the attention of this Court to Annexure
A1 in the instant interlocutory application, wherein
as against Serial No.7, the total amount is
Rs.42,56,109/-. It is the case of the petitioner
that he was paying at the rate of Rs.4,25,610/-, on
every month in compliance with the judgment of this
Court afore referred. The same has been paid upto
and inclusive of the month of September, 2024.
According to the petitioner, the interest which fell
due pending the execution petition was not reckoned
while the installment amount was arrived at. In
order to pay of the same, the petitioner seeks four
more months installments.
3. This application was seriously opposed by the
learned counsel for the respondent/decree holder by
pointing out that time was granted to pay off the
entire debt covered by Ext.P7 common judgment. The
learned counsel would invite this Court's attention
to the operative portion of Ext.P7, which speaks of
two decrees in OS.No.326/2013 and OS.No.293/2014.
The principal amount in the former is
Rs.28,05,240/-, whereas the same is Rs.44,79,568/-
in the second suit. Thus, learned counsel would
conclude that it is for payment of the entire decree
debt covered by Ext.P7 that installments have been
granted, as agreed to. In the instant case, the
decree debt in OS.No.326/2013 alone has been paid by
the petitioner herein. This was objected by the
respondent/decree holder by filing a calculation
statement before the Execution Court indicating that
the monthly installment to be paid comes to more
than Rs.12 lakhs and not Rs.4 lakhs, as been paid by
the petitioner. The same is considered by the
Execution Court and it is confirmed that the amount
to be paid is more than Rs.12 lakhs. Nevertheless
the petitioner chose to pay at the rate of
Rs.4,25,610/-.
4. Having heard the learned counsel appearing for
both sides, this Court finds little merit in the
instant application seeking further installments.
This court refers to paragraph No.2 of the judgment,
wherein the counsel for the respondent/decree holder
has agreed to stop the execution proceedings only
subject to the condition that the entire amount
covered by Ext.P7 decree shall be paid by the
judgment debtor/petitioner. It is taking note of
that, agreement that, this court reiterated in
paragraph No.3 of the judgment that installment
facility is granted to the petitioner/judgment
debtor to pay off the entire decree debt covered by
Ext.P7. If that be so, the present contention that
what was the subject matter before this Court in
OP(C).No.2468/2023 was EP.NO.73/2019 (arising from
OS.No.326/2013) cannot be countenanced. It may be
true that the subject matter was the execution
petition above referred. However, this being an
order which was passed on consent of the parties,
what has to be looked into is the agreement arrived
at by and between the parties. As regards the same,
it is clear that the parties have agreed to clear
off the entire amount/debt covered by Ext.P7, which,
as already referred, is a common judgment in respect
of two suits providing for recovery of two different
amounts, thus facilitating two decrees. In the
circumstances, the instant application lacks merits
and the same will stand dismissed.
Sd/-
C.JAYACHANDRAN, JUDGE
PVV
03-10-2024 /True Copy/ Assistant Registrar
APPENDIX OF OP(C) 2468/2023
Exhibit P7 TRUE COPY OF THE COMMON JUDGMENT IN OS NO.326/2013
DATED 07.09.2018 OF SUB COURT ERNAKULAM
03-10-2024 /True Copy/ Assistant Registrar
