Kerala High Court
M/S. Xcelheights Developers Pvt. Ltd vs M.F. Sayed on 13 June, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
2025:KER:41685
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
FRIDAY, THE 13TH DAY OF JUNE 2025 / 23RD JYAISHTA, 1947
EX.FA NO. 5 OF 2025
AGAINST THE ORDER DATED 16.12.2024 IN E.A.NO.574 OF 2024 IN
EP NO.270 OF 2024 OF ADDITIONAL DISTRICT COURT, ERNAKULAM
APPELLANT/APPELLANT/RESPONDENT/JUDGMENT DEBTOR:
M/S. ADANI INFRASTRUCTURE & DEVELOPERS PVT. LTD.,
AGED 44 YEARS, 10TH FLOOR, SHIKAR, NEAR 'ADANI
HOUSE', NAVARANGPURA, AHMEDABAD , REPRESENTED BY
ITS AUTHORISED SIGNATORY MR. TONY M. TOMY.,
PIN - 380009
BY ADVS.
SRI.ROSHEN.D.ALEXANDER
SMT.TINA ALEX THOMAS
SHRI.HARIMOHAN
SMT.KOCHURANI JAMES
SRI.S.SREEKUMAR (SR.)
RESPONDENTS/RESPONDENT/APPLICANT/DECREE HOLDER:
1 M.F. SAYED
AGED 53 YEARS, S/O. FAZAL HUCK, AGED 53 YEARS,
MULAKKARA HOUSE, PONNARIMANGALAM, MULAVUKADU P.O,
ERNAKULAM., PIN - 682504
2025:KER:41685
Ex.F.A.Nos.5, 6 and 7 of 2025
-: 2 :-
2 THE COMMERCIAL TAX OFFICER
NO. 39/6823, MAHATMA GANDHI ROAD, THEVARA
JUNCTION, THEVARA, PERUMANOOR. KOCHI, KERALA.
[SUO MOTO IMPLEADED AS ADDITIONAL RESPONDENT
R2 AS PER ORDER DATED 26/3/2025 IN EXFA
5/2025], PIN - 682015
3 SUPERINTENDENT OF CENTRAL EXCISE & CUSTUMS
COCHIN RANGE, P.T. JACOB ROAD, THOPPUMPADY,
KOCHI-682005 [SUO MOTO IMPLEADED AS ADDITIONAL
RESPONDENT R3 AS PER ORDER DATED 7/4/2025 IN
EXFA 5/2025]
BY ADVS.
SRI.S.A.ANAND
SRI.P.M.SHAMEER
SHRI.V.GIRISHKUMAR, SC, CENTRAL BOARD OF
INDIRECT TAXES AND CUSTOMS
SHRI.NINU M.DAS
GOVERNMENT PLEADER
THIS EXECUTION FIRST APPEAL HAVING COME UP FOR HEARING
ON 13.06.2025, ALONG WITH Ex.FA.6/2025, 7/2025, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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Ex.F.A.Nos.5, 6 and 7 of 2025
-: 3 :-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
FRIDAY, THE 13TH DAY OF JUNE 2025 / 23RD JYAISHTA, 1947
EX.FA NO. 6 OF 2025
AGAINST THE ORDER DATED 16.12.2024 IN E.A.NO.576/2024
IN EP NO.272 OF 2024 OF ADDITIONAL DISTRICT COURT,
ERNAKULAM
APPELLANT/RESPONDENT/JUDGMENT DEBTOR:
M/S. AALOKA REAL ESTATE PVT. LTD.,
AGED 44 YEARS
REGD. OFFICE 601, 6TH FLOOR, HALLMARK BUSINESS
PLAZZA, OPP. GURU NANAK HOSPITAL, GOVT.
COLONY, BANDRA (EAST), MAHARASHTRA,
REPRESENTED BY ITS AUTHORISED SIGNATORY MR.
TONY M. TOMY., PIN - 400051
BY ADVS.
SRI.ROSHEN.D.ALEXANDER
SMT.TINA ALEX THOMAS
SHRI.HARIMOHAN
SMT.KOCHURANI JAMES
SRI.S.SREEKUMAR (SR.)
2025:KER:41685
Ex.F.A.Nos.5, 6 and 7 of 2025
-: 4 :-
RESPONDENTS/APPLICANT/DECREE HOLDER:
1 M.F. SAYED,
AGED 53 YEARS
S/O. FAZAL HUCK, MULAKKARA HOUSE,
PONNARIMANGALAM, MULAVUKADU P.O, ERNAKULAM.,
PIN - 682504
2 THE COMMERCIAL OFFICER
NO.38/6823, MAHATMA GANDHI ROAD, THEVARA
JUNCTION, THEVARA, PERUMANOOR, KOCHI, KERALA -
682015 (SUO MOTU IMPLEADED AS ADDITIONAL
RESPONDENT NO.2 AS PER ORDER DATED 26-03-2025
IN EX.FA.6/2025)
3 THE SUPERINTENDENT OF CENTRAL EXCISE AND
CUSTOMS
KOCHI RANGE, P T JACOB ROAD, THOPPUMPADY,KOCHI
682005 (ADDITIONAL RESPONDENT 3 IS SUO MOTU
IMPLEADED AS PER ORDER DATED 7/4/2025 IN EXFA
6/2025)
BY ADVS.
SRI.S.A.ANAND
SRI.P.M.SHAMEER
SHRI.NINU M.DAS
GOVERNMENT PLEADER
THIS EXECUTION FIRST APPEAL HAVING COME UP FOR HEARING
ON 13.06.2025, ALONG WITH Ex.FA.5/2025 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2025:KER:41685
Ex.F.A.Nos.5, 6 and 7 of 2025
-: 5 :-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
FRIDAY, THE 13TH DAY OF JUNE 2025 / 23RD JYAISHTA, 1947
EX.FA NO. 7 OF 2025
AGAINST THE ORDER DATED 16.12.2024 IN E.A.NO.575/2024
IN EP NO.271 OF 2024 OF ADDITIONAL DISTRICT COURT,
ERNAKULAM
APPELLANT/APPELLANT/RESPONDENT/JUDGMENT DEBTOR:
M/S. XCELHEIGHTS DEVELOPERS PVT. LTD.,
AGED 44 YEARS
(EARLIER KNOWN AS M/S. ADANI LANDSCAPES PVT.
LTD.) HAVING REGISTERED OFFICE AT ADANI HOUSE,
NEAR MITHAKALI CIRCLE, NAVRANGPURA, AHMEDABAD,
GUJRAT, REPRESENTED BY ITS AUTHORISED
SIGNATORY MR. TONY M. TOMY., PIN - 380009
BY ADVS.
SRI.ROSHEN.D.ALEXANDER
SMT.TINA ALEX THOMAS
SHRI.HARIMOHAN
SMT.KOCHURANI JAMES
SRI.S.SREEKUMAR (SR.)
2025:KER:41685
Ex.F.A.Nos.5, 6 and 7 of 2025
-: 6 :-
RESPONDENTS/RESPONDENT/APPLICANT/DECREE HOLDER:
1 M.F. SAYED
AGED 53 YEARS
S/O. FAZAL HUCK, MULAKKARA HOUSE,
PONNARIMANGALAM, MULAVUKADU P.O, ERNAKULAM.,
PIN - 682504
2 THE COMMERCIAL TAX OFFICER
NO.38/6823, MAHATMA GANDHI ROAD, THEVARA
JUNCTION, THEVARA, PERUMANOOR, KOCHI, KERALA -
682015 (SUO MOTU IMPLEADED AS ADDITIONAL
RESPONDENT NO.2 AS PER ORDER DATED 26-03-2025
IN EX.FA.7/2025)
3 ADDI R3. SUPERINDENTENT OF CENTRAL EXCISE &
CUSTOME S
KOCHIN RANGE, PT JACOB ROAD, THOPPUMPADY,
KOCHI, KERALA - 682005 SUO MOTU IMPLEADED AS
ADDITIONAL RESPONDENT 3 AS PER ORDER DATED
07.04.2025 IN EXFA 7/2025.
BY ADVS.
SRI.S.A.ANAND
SRI.P.M.SHAMEER
SHRI.NINU M.DAS
THIS EXECUTION FIRST APPEAL HAVING COME UP FOR HEARING
ON 13.06.2025, ALONG WITH Ex.FA.5/2025 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2025:KER:41685
SATHISH NINAN & P. KRISHNA KUMAR, JJ.
= = = = = = = = = = = = = = = = = =
Ex.F.A. No.5 of 2025
Ex.F.A. No.6 of 2025
&
Ex.F.A. No.7 of 2025
= = = = = = = = = = = = = = = = = =
Dated this the 13th day of June, 2025
JUDGMENT
Sathish Ninan, J.
These appeals are by the judgment debtors,
challenging the orders of attachment by the execution
court, in the respective execution petitions.
2. The decree passed in Arb.Appeal Nos.38, 39 and
40 of 2015 of this Court were put in execution alleging
failure on the part of the judgment debtors to honour
the decree.
3. In the execution petitions, the decree holder
filed E.A.No.575 of 2024 for attachment of the immovable
property of the judgment debtor, for sale in execution.
4. The judgment debtors contend inter alia that
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Ex.F.A.Nos.5, 6 and 7 of 2025
the decree had been satisfied. The judgment debtors
sought for lifting of the attachments and the dismissal
of the execution petitions. It was also contended that
the proceedings are vitiated for non-issuance of notice
in terms of Order XXI Rule 22 of the Code of Civil
Procedure since the execution petitions are filed two
years after the date of the decree.
5. The execution court overruled the objections
and sustained the orders of attachment. The said orders
in the respective execution petitions are under
challenge in these appeals.
6. We have heard Sri.S. Sreekumar, the learned
Senior Counsel on behalf of the appellants and Sri.S.A.
Anand, the learned counsel on behalf of the respondents.
7. The main contention of the appellants is that,
the decree has been satisfied and the execution
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Ex.F.A.Nos.5, 6 and 7 of 2025
petitions are liable to be dismissed. Section 47 of the
Code of Civil Procedure stipulates that all questions
with regard to the execution, discharge and satisfaction
of the decree between the parties to the lis is to be
determined by the execution court. Therefore, the
contention of the judgment debtors regarding
satisfaction of the decree, etc., are liable to be
considered by the execution court.
8. Though the judgment debtors have not moved an
application under Section 47, they have objected to the
attachment and execution proceedings urging their
contentions including, satisfaction of the decree. We
are of the opinion that it would be sufficient if the
objections filed by the judgment debtors to the
attachment applications (execution applications in the
respective execution petitions) be treated as
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Ex.F.A.Nos.5, 6 and 7 of 2025
applications under Section 47 of the Code of Civil
Procedure and the execution court determines all
questions regarding execution, discharge and
satisfaction of the decree. Rule 285 of the Civil Rules
of Practice provides that a proceeding under Section 47
shall be tried and disposed of akin to a suit. The
execution court shall adhere to the same.
9. With regard to the failure to issue notice
under Rule 22 of Order XXI, this Court has held that,
even the rule provides for waiver of such notice, and
the non-issuance of such notice, or non-recording of
reasons while dispensing with notice is not fatal.
[See:A.K. Narayanan Nambiar v. State of Kerala and Ors (AIR 1964 Ker. 158) and
Jaseentha Joseph v. Louis Neeklause, Cheppallil St. Joseph House, Patathanam Ward
and Ors (1996 (2) KLT 452)]. The said objection is overruled.
10. Pending the adjudication of the contentions
under Section 47 of the Code of Civil Procedure, further
2025:KER:41685
Ex.F.A.Nos.5, 6 and 7 of 2025
steps in execution, for sale of the property under
attachment shall not be proceeded with. It is clarified
that the adjudication shall be made untrammelled by any
observations or findings in the impugned order. The
execution court shall make every endeavour to expedite
the proceedings.
The appeals are disposed of as above.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P. KRISHNA KUMAR
JUDGE
yd
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Ex.F.A.Nos.5, 6 and 7 of 2025
PETITIONER ANNEXURES
Annexure A1 TRUE COPY OF E.P NO. 270/2024 ON THE
FILES OF THE HON'BLE ADDITIONAL DISTRICT
COURT-VII, ERNAKULAM.
Annexure A2 TRUE COPY OF E.A NO. 574/2024 FILED
ALONG WITH E.P. NO. 270/2024 ON THE
FILES OF THE HON'BLE ADDITIONAL DISTRICT
COURT-VII, ERNAKULAM.
Annexure A3 TRUE COPY OF THE ORDER DTD. 24.09.2024
IN E.A. NO. 574/2024 IN E.P. NO.
270/2024 ISSUED BY THE HON'BLE
ADDITIONAL DISTRICT COURT-VII,
ERNAKULAM.
Annexure A4 TRUE COPY OF THE OBJECTION/COUNTER
AFFIDAVIT FILED BY THE APPELLANT IN E.A
NO. 574/2024 IN E.P NO. 270/2024.
Annexure A5 TRUE COPY OF THE COMMON JUDGMENT DTD.
24.09.2021 OF THIS HON'BLE COURT IN ARB.
APPEAL NOS. 38, 39 AND 40 OF 2015 ALONG
WITH THE MEMORANDUM OF AGREEMENT ARRIVED
IN MEDIATION UNDER SECTION 89 OF THE
CODE OF CIVIL PROCEDURE READ WITH RULES
24 AND 25 OF THE CIVIL PROCEDURE
(ALTERNATIVE DISPUTE RESOLUTION) RULES,
2008.
Annexure A6 TRUE COPY OF THE MEMORANDUM OF
UNDERSTANDING DTD. 02.08.2021 EXECUTED
BETWEEN THE APPELLANT AND THE
RESPONDENT.
Annexure A7 TRUE COPY OF THE CERTIFICATE DTD.
14.01.2022 ISSUED BY THE ASSISTANT
COMMISSIONER, OFFICE OF THE JOINT
COMMISSIONER, SGST DEPARTMENT (WORKS
CONTRACT).
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Ex.F.A.Nos.5, 6 and 7 of 2025
Annexure A8 TRUE COPY OF THE CERTIFICATE DTD.
05.01.2022 ISSUED BY THE ASSISTANT
COMMISSIONER, OFFICE OF THE JOINT
COMMISSIONER, SGST DEPARTMENT (WORKS
CONTRACT).
RESPONDENTS' ANNEXURES
Annexure R1 A true copy of the final bill the
service tax amount
Annexure R2 A true copy of the notice issued
Reminder 1V as per 0.C.N0.634/2011 dated
30.03.2011
Annexure R3 A true copy of the order dated
06.06.2016 for Assessment Year 2009-10
and 2010-11.
Annexure R4 A true copy of the order dated
06.06.2016 for Assessment Year 2010-11
Annexure R5 A true copy of the notice dated
15.02.2023 issued by my counsel to the
appellant
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Ex.F.A.Nos.5, 6 and 7 of 2025
PETITIONER ANNEXURES
Annexure A1 TRUE COPY OF E.P NO. 272/2024 ON THE
FILES OF THE HON'BLE ADDITIONAL DISTRICT
COURT-VII, ERNAKULAM.
Annexure A2 TRUE COPY OF E.A NO. 576/2024 FILED
ALONG WITH E.P. NO. 272/2024 ON THE
FILES OF THE HON'BLE ADDITIONAL DISTRICT
COURT-VII, ERNAKULAM.
Annexure A3 TRUE COPY OF THE ORDER DTD. 24.09.2024
IN E.A. NO. 576/2024 IN E.P. NO.
272/2024 ISSUED BY THE HON'BLE
ADDITIONAL DISTRICT COURT-VII,
ERNAKULAM.
Annexure A4 TRUE COPY OF THE OBJECTION/COUNTER
AFFIDAVIT FILED BY THE APPELLANT IN E.A
NO. 576/2024 IN E.P NO. 272/2024.
Annexure A5 TRUE COPY OF THE COMMON JUDGMENT DTD.
24.09.2021 OF THIS HON'BLE COURT IN ARB.
APPEAL NOS. 38, 39 AND 40 OF 2015 ALONG
WITH THE MEMORANDUM OF AGREEMENT ARRIVED
IN MEDIATION UNDER SECTION 89 OF THE
CODE OF CIVIL PROCEDURE READ WITH RULES
24 AND 25 OF THE CIVIL PROCEDURE
(ALTERNATIVE DISPUTE RESOLUTION) RULES,
2008.
Annexure A6 TRUE COPY OF THE MEMORANDUM OF
UNDERSTANDING DTD. 02.08.2021 EXECUTED
BETWEEN THE APPELLANT AND THE
RESPONDENT.
Annexure A7 TRUE COPY OF THE CERTIFICATE DTD.
14.01.2022 ISSUED BY THE ASSISTANT
COMMISSIONER, OFFICE OF THE JOINT
COMMISSIONER, SGST DEPARTMENT (WORKS
CONTRACT).
2025:KER:41685
Ex.F.A.Nos.5, 6 and 7 of 2025
Annexure A8 TRUE COPY OF THE CERTIFICATE DTD.
05.01.2022 ISSUED BY THE ASSISTANT
COMMISSIONER, OFFICE OF THE JOINT
COMMISSIONER, SGST DEPARTMENT (WORKS
CONTRACT).
Annexure A9 TRUE COPY OF THE NOTICE BEARING NO. E2-
662/2024 DTD. 01.08.2024 ISSUED FROM THE
OFFICE OF THE SPECIAL TAHSILDAR (RR) TO
THE VILLAGE OFFICER, MULAVUKAD ALONG
WITH A COMMUNICATION BEARING NO.
TPSCVYP/2024-25 DTD. 07.08.2024 ISSUED
BY THE STATE TAX OFFICER, TAX PAYER
SERVICES CIRCLE, VYPIN, ERNAKULAM TO THE
SPECIAL TAHSILDAR (RR), KANAYANNUR
TAKUK.
RESPONDENTS' ANNEXURES
Annexure R1 A true copy of the final bill the
service tax
Annexure R2 A true copy of the notice issued
Reminder 1V as per 0.C.N0.634/2011 dated
30.03.2011
Annexure R3 A true copy of the order dated
06.06.2016 for Assessment Year 2009-10
Annexure R4 A true copy of the order dated
06.06.2016 for Assessment Year 2010-11
Annexure R5 A true copy of the notice dated
15.02.2023 issued by my counsel to the
appellant
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Ex.F.A.Nos.5, 6 and 7 of 2025
PETITIONER ANNEXURES
Annexure A1 TRUE COPY OF E.P NO. 271/2024 ON THE
FILES OF THE HON'BLE ADDITIONAL DISTRICT
COURT-VII, ERNAKULAM.
Annexure A2 TRUE COPY OF E.A NO. 575/2024 FILED
ALONG WITH E.P. NO. 271/2024 ON THE
FILES OF THE HON'BLE ADDITIONAL DISTRICT
COURT-VII, ERNAKULAM.
Annexure A3 TRUE COPY OF THE ORDER DTD. 24.09.2024
IN E.A. NO. 575/2024 IN E.P. NO.
271/2024 ISSUED BY THE HON'BLE
ADDITIONAL DISTRICT COURT-VII,
ERNAKULAM.
Annexure A4 TRUE COPY OF THE OBJECTION/COUNTER
AFFIDAVIT FILED BY THE APPELLANT IN E.A
NO. 575/2024 IN E.P NO. 271/2024.
Annexure A5 TRUE COPY OF THE COMMON JUDGMENT DTD.
24.09.2021 OF THIS HON'BLE COURT IN ARB.
APPEAL NOS. 38, 39 AND 40 OF 2015 ALONG
WITH THE MEMORANDUM OF AGREEMENT ARRIVED
IN MEDIATION UNDER SECTION 89 OF THE
CODE OF CIVIL PROCEDURE READ WITH RULES
24 AND 25 OF THE CIVIL PROCEDURE
(ALTERNATIVE DISPUTE RESOLUTION) RULES,
2008.
Annexure A6 TRUE COPY OF THE MEMORANDUM OF
UNDERSTANDING DTD. 02.08.2021 EXECUTED
BETWEEN THE APPELLANT AND THE
RESPONDENT.
Annexure A7 TRUE COPY OF THE CERTIFICATE DTD.
14.01.2022 ISSUED BY THE ASSISTANT
COMMISSIONER, OFFICE OF THE JOINT
COMMISSIONER, SGST DEPARTMENT (WORKS
CONTRACT).
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Ex.F.A.Nos.5, 6 and 7 of 2025
Annexure A8 TRUE COPY OF THE CERTIFICATE DTD.
05.01.2022 ISSUED BY THE ASSISTANT
COMMISSIONER, OFFICE OF THE JOINT
COMMISSIONER, SGST DEPARTMENT (WORKS
CONTRACT).
RESPONDENTS' ANNEXURES
Annexure R3 A true copy of the order dated
06.06.2016 for Assessment Year 2009-10
Annexure R4 A true copy of the order dated
06.06.2016 for Assessment Year 2010-11
Annexure R5 A true copy of the notice dated
15.02.2023 issued by my counsel to the
appellant
Annexure R1 A true copy of the final bill the
service tax
Annexure R2 A true copy of the notice
0.C.NO.634/2011 dated 30.03.2011
