Kerala High Court

Sureshkumar.B vs S.L.Ajithkumar on 25 September, 2024

                                          1
OPC 592/2019




                                                                2024:KER:74297
                   IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                      PRESENT

                    THE HONOURABLE MR.JUSTICE BASANT BALAJI

       WEDNESDAY, THE 25TH DAY OF SEPTEMBER 2024 / 3RD ASWINA, 1946

                                OP(C) NO. 592 OF 2019

       AGAINST THE JUDGMENT DATED IN OS NO.54 OF 2018 OF ASSISTANT SESSIONS

COURT/SUB COURT/COMMERCIAL COURT,NEYYATTINKARA


PETITIONER/S:

               SURESHKUMAR.B., AGED 57 YEARS
               S/O. BALAKRISHNAN NAIR, THACHOTTUKAVU, VENMATHELLOOR MOOZHI
               HOUSE, MALAYINKEEZHU VILLAGE, KOTTAKADA TALUK,
               THIRUVANANTHAPURAM 695 572.


               BY ADVS.
               R.T.PRADEEP
               SMT.M.BINDUDAS




RESPONDENT/S:

               S.L.AJITHKUMAR, AGED 56 YEARS
               S/O. SUKUMARAN, IYAMVILA, ASHTAMI HOUSE, T.C NO. 17/1487/1,
               PANGODU WARD, SASTHAMANGALAM VILLAGE, THIRUVANANTHAPURAM
               TALUK, THIRUVANANTHAPURAM 695 010.


               BY ADVS.
               SRI.R.SURAJ KUMAR
               SRI.SUNIL J.CHAKKALACKAL
               SMT.V.DEEPA
               SRI.T.A.RAJEEV



      THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22.2.2019, THE COURT
TODAY DELIVERED THE FOLLOWING:
                                         2
OPC 592/2019




                                                                 2024:KER:74297
                                JUDGMENT

(Dated this the 25th day of September 2024)

The defendant in O.S.No.54 of 2018 on the files of Sub

Court, Neyyattinkara, is the petitioner. The respondent/ plaintiff

filed the suit for recovery of money to the tune of

Rs.26,95,000/. Along with the suit, I.A. No.988 of 2018 was

filed seeking attachment of plaint schedule property for the

plaint claim with future interest.

2. The petitioner filed an objection to the petition for

attachment, contending that there were 9 agreements for sale.

The first agreement, dated 2.8.2010, and the last

agreement, dated 8.6.2012, were concealed from the court with

the oblique motive to maintain the suit. The original of the last

agreement was returned on payment of Rs.13,75,000/-. On

8.9.2012, on the expiry of 3 months stipulated period in the last

agreement dated 8.6.2012, the respondent produced originals of

2024:KER:74297 all agreements except the first and last agreements and filed the

suit. The suit is hopelessly barred by limitation, as the date of

the last agreement is 8.6.2012. By Ext.P7 order dated 4.2.2019,

the learned Sub Judge allowed the conditional attachment and

directed the furnishing of security for Rs.30 lakhs within 30

days. On failure, the attachment was directed to be made

absolute.

3. Heard the counsel Sri.R.T. Pradeep for the petitioner and

Sri. R. Suraj Kumar for the respondent.

4. The main contention raised by the counsel for the

petitioner is that the plaintiff has not stated regarding the last

agreement executed between them, which is produced as Ext.P6

dated 8.6.2012 and it supersedes all the previous agreements.

Therefore, the suit itself is not maintainable against the

defendant. In such a situation, no attachment can be ordered

against the property of the defendant. It is also argued that the

2024:KER:74297 suit is barred by limitation. Since Ext.P6 agreement is dated

8.6.2012, the suit ought to have filed within 3 years. Admittedly,

the suit is filed only in November 2018. Therefore, the suit is

barred by limitation.

5. He also raised another contention that when the plaintiff

returned the last agreement to the defendant, he had paid the

amount of Rs.13,75,000/- and that is how he came to have

possession of the original agreement. The learned Sub Judge

went wrong in holding that the period of limitation is 12 years to

file the suit as per Article 62 of the Limitation Act, since there is

a charge upon the property. It is also argued that as per the

direction of this court, the petitioner has filed an affidavit on

22.2.2019 in which he has undertaken that he will not alienate,

encumber or charge the plaint schedule property during the

pendency of the O.P.

6. The only question to be decided is, in a suit for recovery

2024:KER:74297 of money based on a contract of sale of immovable property,

whether a conditional order can be passed under Order 38 Rule

5 CPC. The respondent filed the suit for recovery of

Rs.13,75,000/- being the earnest money towards sale

consideration of Rs.16,00,000/-, the basis of the agreement for

sale, and the balance to be paid is only Rs.2,25,000/-. It is the

case of the plaintiff that he has approached the defendant many

times and asked to measure the property and to execute the sale

deed. However, the defendant evaded and was not ready and

willing to execute the sale deed.

7. The petitioner/defendant admits the execution of the sale

agreements. His contention is that there were 9 independent

agreements, and the plaintiff cleverly suppressed the last

agreement from the court and filed the suit. Since each

agreement is independent, the suit can only be filed based on the

last agreement, Ext.P6, which supersedes all other

2024:KER:74297 agreements. The maintainability of the suit and the question of

limitation cannot be looked into by the learned Sub Judge at the

stage of considering the application for attachment of the plaint

schedule property. The learned Sub Judge is only to see whether

a prima facie case is established as to whether a security has to

be furnished by the defendant for the plaint claimed. The

plaintiff apprehends that the defendant may alienate the same to

defeat the plaint claim. The learned Sub Judge, on appreciation

of the facts and circumstances of the case, came to a definite

conclusion that the apprehension of the plaintiff that the

defendant will alienate the plaint schedule property is

genuine. In such a situation, the defendant was directed to

furnish security for Rs.30 lakhs and a conditional attachment

order was passed.

8. The counsel for the petitioner submitted that he is ready

to undertake before the Trial court that he will not alienate or

2024:KER:74297 encumber the property till the disposal of the suit. Therefore, the

order of attachment may be lifted.

9. Attachment of immovable property is created only to see

that the plaintiff if ultimately wins, the plaint claim is not

defeated by alienation or encumbrance of the property of the

plaint schedule property. If ultimately the suit is dismissed or it

is found that the plaint is not maintainable, the attachment

effected cease to exist. Therefore, to meet the ends of justice,

the learned Sub Judge has exercised his discretion on the fact and

the defendant is directed to furnish security for Rs.30 lakhs and

a conditional attachment order was passed, and on failure, the

attachment was to be absolute.

10. M/s.Garment Craft v. Prakash Chand Goel (2022

LiveLaw (SC) 39] the apex court has held as follows:

"6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India

2024:KER:74297 is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."

In view of the dictum laid down by the apex court, no

2024:KER:74297 interference is warranted to set aside Ext.P7 and accordingly, the

O.P.(C) is dismissed.

It is made clear that the learned Sub Judge, while passing

orders on the attachment petition, observed that prima facie, the

suit is not barred by limitation. The learned Sub Judge ought not

have ventured to such a finding at this stage. Therefore, all

contentions regarding the maintainability and the Law of

Limitation are left open to be raised by the petitioner/defendant

at the appropriate stage.

Sd/-

BASANT BALAJI JUDGE