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High Court of KeralaOP(C)/1311/2014disposed of

Balakrishnan K.V v. George C Abraham

2015-04-07Honourable Mr.Justice P.Bhavadasan6 pages

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE P.BHAVADASAN TUESDAY, THE 7TH DAY OF APRIL 2015/17TH CHAITHRA, 1937 OP(C).No. 1311 of 2014 (O) ------------------------------- (E.A.404/2013 IN E.P.179/2013 IN O.S.149/2010 BEFORE SUB COURT-II, NORTH PARAVOOR) PETITIONER:

-------------- BALAKRISHNAN K.V 7/209, PRIYA, NATIONAL HIGH WAY ANGAMALY SOUTH P.O, PIN 683 573.

BY ADV. SRI.SAIBY JOSE KIDANGOOR RESPONDENTS:

------------------ 1.

GEORGE C ABRAHAM, AGED 25 YEARS, S/O.REJEE C.GEORGE, RESIDING AT CHOTHIAKADAVIL HOUSE NO.29, KID GARDEN, SOUTH KALAMASSERY REPRESENTED BY HIS POWER OF ATTORNEY HOLDER SRI.RAJEE C.GEORGE RESIDING AT CHOTHIAKADAVIL, HOUSE NO.29, KID GARDEN SOUTH KALAMASSERY - 682 023.

2.

FOCAL POINT VENTURES PVT. LTD REPRESENTED BY ITS MANAGING DIRECTOR, PREMKUMAR K.B, AGED 35 YEARS, S/O.BALAKRISHNAN K.V, FOCAL POINT VENTURES PVT. LTD, 205-A, CARLTON TOWERS No.1, AIRPORT ROAD, BANGALORE - 560 008.

3.

PREMKUMAR K.B, AGED 35 YEARS, S/O.BALAKRISHNAN K.V, 7/209, PRIYA NATIONAL HIGHWAY, ANGAMALY SOUTH P.O, PIN - 683 573.

R1 BY ADV. SRI.V.PHILIP MATHEW R2 & R3 BY ADV. SRI.P.M.MOHAMMED SALIH THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 07-04-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

OP(C).No. 1311 of 2014 (O) ------------------------------- APPENDIX PETITIONER'S EXHIBITS :

----------------------------- EXHIBIT P1. COPY OF THE SALE/ RELEASE DEED OF PETITIONERS PROPERTY NO.3194/93 DATED 11.8.93.

EXHIBIT P2. COPY OF THE JUDGMENT IN OS 149/10 DATED 31.1.12 OF IST ADDL.SUB COURT, ERNAKULAM.

EXHIBIT P3. COPY OF THE IA 4985/12 IN OS 149/10 OF THE IST ADDL.SUB COURT, ERNAKULAM DATED 24.9.12.

EXHIBIT P4. COPY OF THE IA 4986/12 IN OS 149/10 OF THE IST ADDL.SUB COURT, ERNAKULAM DATED 24.9.12.

EXHIBIT P5. COPY OF THE IA 451/14 IN IA 4985/12 IN OS 149/10 OF THE IST ADDL. SUB COURT ERNAKULAM DATED 22.1.14.

EXHIBIT P6. COPY OF THE IA 453/14 IN IA 4986/12 IN OS 149/10 OF THE IST ADDL.SUB COURT, ERNAKULAM DATED 22.1.14.

EXHIBIT P7. COPY OF THE EP NO.179/13 IN OS 149/10 OF IST ADDL.SUB COURT, ERNAKULAM DATED 18.2.13.

EXHIBIT P7(a).COPY OF THE EA 404/13 IN EP 179/13 IN OS 149/10 OF THE IST ADDL.SUB COURT ERNAKULAM DATED 18.2.13.

EXHIBIT P8. COPY OF THE OBJECTION IN EA NO.404/13 IN EP 179/13 IN OS 149/10 OF THE IST ADDITIONAL SUB COURT, ERNAKULAM DATED 22.5.14.

RESPONDENTS' EXHIBITS:

----------------------------- EXT. R1(a) :

COPY OF ARTICLES OF ASSOCIATION OF 2ND RESPONDENT COMPANY.

EXT. R1(b) :

COPY OF NOTICE DTD.4.9.02 IN RESPECT OF ANNUAL GENERAL MEETING OF R2.

EXT. R1(c) :

COPY OF PROCEEDINGS DTD.30.09.02 IN RESPECT OF ANNUNAL GENERAL MEETING OF R2 COMPANY.

EXT.R1(d) :

COPY OF DIRECTORS REPORT DTD.4.9.02 IN RESPECT OF 4TH ANNUAL REPORT OF R2 COMPANY.

EXT. R1(e) :

COPY OF BALANCE SHEET OF R2 COMPANY AS ON 31.03.02.

// True Copy // P.A. To Judge.

smp

P. BHAVADASAN, J.

- - - - - - - - - - - - - - - - - - - - - - - - O.P.(C). No. 1311 of 2014 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of April, 2015.

JUDGMENT

The grievance voiced by the petitioner is that in respect of the debt of a Company and its Managing Director, who is the son of the petitioner, his property, which had nothing to do with the Company, is proceeded against. The petitioner, in support of his submission, produced the title deed. It is pointed out that the petitioner was not a party to the suit.

2. Learned counsel for the respondents contended that it is a collusive affair to dodge the payment of debt as a result of an ex parte decree against the Company. It is pointed out by the learned counsel that

there were rent control proceedings against the Company and son of the petitioner which was initially disposed of ex parte and later it was set aside on the motion by the son of the petitioner and this happened on two subsequent occasions also and ultimately he was evicted. However, arrears of rent remains to be paid, and for that a decree was obtained. Subsequently the decree was put in execution. Even assuming that the property of the petitioner has been wrongly or illegally proceeded against, the only remedy available to the petitioner is to file a claim petition as provided under the Code of Civil Procedure and got it adjudicated. It is also pointed out by the learned counsel for the respondents that a petition was filed on behalf of the Company by the same counsel which would show that it was a collusive affair.

3. The mere fact that the Company has filed a

petition through the counsel for the petitioner herein may not have much significance in the context of the issue that arises for consideration. The issue involved is whether the property of the petitioner, who claims that he had nothing to do with the Company or his sons' debt, can be proceeded against. But as rightly pointed out now that the property has been attached, the only remedy of the petitioner is to file a petition under the provisions of the Code of Civil Procedure.

4. It is pointed out by the learned counsel for the respondents that in view of Ext.R1 produced by the respondents along with the counter affidavit, it is seen that the petitioner is the Managing Director of the Company which is strongly disputed by the petitioner. It is a matter for adjudication before the appropriate forum. If a claim petition is filed by the petitioner as

mentioned above on or before 30.05.2015, it shall be adjudicated in accordance with law. Till then, the property shall not be proceeded against for the debt.

Sd/- P. BHAVADASAN, JUDGE sb/smp