IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 364 of 2010()
1. ABBAS KHALID,
... Petitioner
2. SHIYAS KHALID,
Vs
1. EATTONNIL MUHAMMADUNNI, S/O.MUHAMMED,
... Respondent
For Petitioner :SRI.K.ANAND (A.201)
For Respondent :SRI.G.SREEKUMAR (CHELUR)
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :28/01/2011
O R D E R
THOTTATHIL B. RADHAKRISHNAN & P.S.GOPINATHAN, JJ.
--------------------------------------
F.A.O.No.364 OF 2010
--------------------------------------
Dated this the 28th day of January, 2011
J U D G M E N T
~~~~~~~~~~~
Thottathil B. Radhakrishnan, J.
The defendants challenge an order of attachment before
judgment of two items of immovable properties.
2. The plaintiff and defendants entered into an
agreement for sale in relation to item No.1. On the allegation
that the performance of that failed owing to the conduct of the
defendants, the plaintiff sued for return of advance of Rs.One
crore eighteen lakhs. The plaintiff sought attachment before
judgment of two items of properties; item No.1 is the property
involved in the agreement. The court below granted an order of
attachment of both the items, ad interim and has by the
impugned order made it absolute.
3. The learned counsel for the appellants argued that
while the apprehension expressed by the plaintiff before the
F.A.O.No.364/2010 2
court below to make the application for attachment before
judgment is that the plaintiff has information through two
persons that the defendants intend to sell off the properties, the
defendants have shown with materials, that such apprehension
was misplaced. It is further argued that even going by the
amount fixed under the agreement for sale it would show that
item No.1 would be sufficient to cover the debt under any decree
that may be passed, even if the plaintiff were to succeed. He
accordingly argued that attachment of item No.2 was wholly
unnecessary.
3. The court below has given cogent reasons for
ordering attachment before judgment of both the items. The
defendants were themselves on record with the statement that
item No.1 is involved in proceedings under the SARFAESI Act.
The court below had, therefore, noted the probable diminution in
value relatable to that situation and the funds that could be
generated out of item No.I to satisfy any decree that may be
passed in favour of the plaintiff. It accordingly stated reasons
and ordered attachment before judgment of item No.2 also. As
F.A.O.No.364/2010 3
regards the apprehension that the defendants would sell off the
properties, suffice to say that the defendants are not, even
before us, prepared to undertake that they will not alienate or
encumber the properties. Not only that any assertion by them
that they would not alienate or encumber would be insufficient
having regard to the proceedings admittedly existing under the
provisions of the SARFAESI Act.
4. For the aforesaid reasons, we do not find any ground
to interfere with the impugned order in appeal. The challenge
accordingly fails. The appeal is dismissed. The court below will
try and dispose of the case, untrammelled by anything stated in
the impugned order or in this judgment, as expeditiously as
possible.
(THOTTATHIL B. RADHAKRISHNAN, JUDGE)
(P.S.GOPINATHAN, JUDGE)
ps