IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 34086 of 2009(O)
1. ABDUL KHADER, S/O. AMMU, AGED 51
... Petitioner
Vs
1. ABDUL RZAK, S/O. KUTTY,
... Respondent
For Petitioner :SRI.VIVEK VARGHESE P.J.
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :26/11/2009
O R D E R
S.S. SATHEESACHANDRAN, J.
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W.P.(C) No. 34086 of 2009
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Dated: 26th November, 2009
JUDGMENT
The Writ Petition is filed seeking mainly the following reliefs:
1. To issue a writ of certiorari or such other writ, order or direction
quashing the order dated 26.10.2009 in I.A.No.1082 of 2009.
2. Issue a writ of mandamus or such other writ, order or direction
directing the court below to revive the order of attachment passed in
I.A.No.1082 of 2009.
2. Petitioner is the plaintiff in O.S.No.147 of 2009 on the file of
the Additional Sub Court, North Paravur. Suit is one for money, and
the respondent is the defendant. With the suit, plaintiff had moved an
application for interim attachment of an immovable property
belonging to the respondent/defendant under Order 38 Rule 5 of the
Code of Civil Procedure. An interim attachment before judgment with
notice to the respondent directing him to furnish security for the suit
claim or show cause, was ordered by the learned Sub Judge. The
respondent, on appearance, resisted the application disputing the
genuineness of the document which was produced by the
petitioner/plaintiff to substantiate the suit claim of Rs.1,90,000/-.
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Accepting the contention raised by the respondent that the document
produced, which was written on a stamp paper of Rs.50/- containing
a promise to return the amount of Rs.1,90,000/- alleged to have
been borrowed earlier, cannot be treated as an agreement, but, only
as a bond the learned Sub Judge concluded that it is insufficiently
stamped and till sufficient stamp duty is paid with penalty, it cannot
be acted upon. Interim attachment already ordered was thereupon
vacated and the application of the plaintiff dismissed observing that it
will not stand in the way of the plaintiff in moving a fresh application
after the document is properly stamped as required. P1 is the copy of
that order. Propriety and correctness of P1 order is challenged in the
writ petition invoking the supervisory jurisdiction vested with this
court under Article 227 of the Constitution of India.
3. I heard the counsel on both sides. Learned counsel for the
petitioner submitted the suit claim was based on the original cause of
action between the borrower and the defendant and the document
produced was only evidencing an acknowledgement as to the
previous borrowal. That being so, the document could not have been
construed as a ‘bond’ as mistakenly done by the learned Sub Judge,
submits the counsel. Without even giving an opportunity to the
plaintiff to show that the document would not come within the ambit
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of a ‘bond’, and, further, without noticing the case set in the plaint
that the document produced is not the basis of the suit claim, but,
only as an acknowledgment of a previous borrowal, according to the
learned counsel, the learned Sub Judge under the impugned order
(P1), had lifted the attachment and dismissed the application. On the
other hand, learned counsel for the respondent contended that no
interference with the order passed by the learned Sub Judge is called
for invoking the visitorial jurisdiction vested with this court.
4. A copy of the document, which was found to be insufficiently
stamped as a ‘bond’ under the impugned order was handed over to
me for my perusal. It is seen from the copy of the document, the
original of which was written on a stamp paper of Rs.50/-, that it was
given as an acknowledgment to a previous borrowal of a total sum of
Rs.1,90,000/- by way of several payments earlier, promising to
discharge that debt in toto or piecemeal within a period of six
months. That document produced in the suit was construed by the
learned Sub Judge as a bond and that it was insufficiently stamped.
The most essential and crucial element which distinguishes a bond
from an agreement is that an acknowledgement evidencing a
preexisting liability would not normally become a bond. What is to be
noticed and scrutinised is whether a liability is created in the
W.P.C.No.34086/09 – 4 –
document itself or whether it is an acknowledgment of a preexisting
liability. Without examining the document produced in that line, it is
apparent the court below has straightway jumped into the conclusion
that the document is a bond. The learned Sub Judge is directed to
reexamine the document produced with reference to the decisions
rendered by this court in Sreedharan v. Gopi (2003(2) KLT 372)
and Radha v. Sankaranarayanan (2007(1) KLT 20) both of which
will give an insight as to the distinctions to be drawn between a bond
and an agreement. P1 order passed by the learned Sub Judge is set
aside and the application for interim attachment dismissed under the
order shall stand restored, with the order of interim attachment
passed by the court below revived as if it had not been lifted.
The learned Sub Judge shall dispose the application for interim
attachment afresh taking note of the observations made above and in
accordance with law, within a period of three weeks from the date of
receipt/production of a copy of this judgment. Writ Petition is
disposed as indicated above. Send a copy of the judgment to the
court concerned forthwith.
srd S.S. SATHEESACHANDRAN, JUDGE
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