IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 21106 of 2009(O)
1. T.M.SEBASTIAN, S/O. MATHAI, AGED 69,
... Petitioner
Vs
1. K.L.CONSTANTINE, S/O. K.S.LAWRENCE,
... Respondent
2. STATE BANK OF INDIA,
3. FEDERAL BANK LTD.,
For Petitioner :SRI.JOHNSON MANAYANI
For Respondent :SRI.ALEXANDER JOSEPH
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :07/08/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).No.21106 OF 2009
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Dated this the 7th day of August 2009
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JUDGMENT
writ petition is filed seeking the
following reliefs.
i) Issue appropriate directions directing
the learned District Judge, Kottayam to hear and
dispose of the petitioner’s Exts.P4 to P8 within a
time bound frame and until then the first
respondent may be restrained from cutting and
removing the trees standing in the schedule to
Ext.P1 petition.
ii) Issue such other orders as are deemed
fit and proper in the circumstances of the case.
W.P.(C).No.21106 OF 2009 Page numbers
2. Petitioner has filed an insolvency
petition as I.P No. 3 of 2009 before the Sub
Court, Pala to declare the first respondent as
insolvent under the provisions of the Insolvency
Act. In that proceeding, petitioner moved an
application for an interim injunction to restrain
the first respondent from cutting and removing
trees in his property scheduled in the petition.
Initially an order of interim injunction was
granted, but it was later modified permitting the
petitioner to cut and remove the rubber trees alone
and replanting them. The order thereof was
challenged by the petitioner before this court by
filing a writ petition and later noticing that a
statutory appeal is provided under the provisions
of Insolvency Act the writ petition was withdrawn
with permission to challenge the order as provided
by law. By the time the appeal was preferred, it
was barred by time and so much so, a petition to
W.P.(C).No.21106 OF 2009 Page numbers
condone the delay was also presented. The delay
petition is pending enquiry. Meanwhile the first
respondent is taking hasty steps to cut and remove
the rubber trees is the grievance canvassed in the
writ petition for seeking appropriate directions or
orders to the court where the appeal is pending for
an expeditious enquiry and disposal of the delay
petition and passing of orders on the appeal if it
is entertained.
3. Notice being given, the first
respondent has entered appearance. Notice to
second and third respondents is dispensed as their
presence is not found required for the disposal of
this petition.
4. I heard the learned counsel on both
sides. At the time of hearing the learned counsel
for the first respondent submitted that he will
W.P.(C).No.21106 OF 2009 Page numbers
furnish an unconditional undertaking, to furnish
security for a sum of Rs.5,00,000/-, to satisfy the
suit claim, when within two weeks, in O.S No. 169
of 2008 in Sub Court, Pala, which was instituted
by the present petitioner seeking a decree for
money on the basis of a cheque for a sum of rupees
five lakhs purported to have been issued by the
first respondent. In that suit, on the application
moved by the petitioner under Order 38 Rule 5 of
the Code of Civil Procedure it is submitted an
interim order of attachment before judgment has
already been passed by the court attaching the
property of the first respondent. Cutting and
removal of rubber trees from that property, it is
submitted, has given rise to the present
controversy arising for consideration in the
present petition. It is further submitted by the
counsel that the cutting and removal of the trees
as per the terms of the agreement entered with
W.P.(C).No.21106 OF 2009 Page numbers
another is essential to furnish the security for
the suit claim of rupees five lakhs and so much so,
he may not be restrained from honouring the terms
of that agreement. The learned counsel for the
petitioner submits that he has no objection in
disposal of the writ petition subject to the
condition that first respondent shall file an
undertaking to the court below in the suit, before
the Sub Court, Pala, within the time limit fixed by
this court, as submitted by his learned counsel.
It is further submitted by the counsel that on such
undertaking being furnished, the petitioner will
not pursuing the insolvency proceedings and also
the appeal proceeded against the order from the
interlocutory application which is now being
agitated in an appeal before District Court,
Kottayam. Submissions made by the respective
counsel are recorded.
W.P.(C).No.21106 OF 2009 Page numbers
4. Writ petition is disposed directing
the first respondent to furnish the undertaking
before the Sub Court, Pala, as submitted by his
counsel, to produce security for a sum of
respondents.5,00,000/- to satisfy the suit claim,
within a period of two weeks from the date of this
judgment. The undertaking shall be given without
delay and security as represented to be produced
within two weeks. Hand over a copy of the judgment
to the counsel on both sides on usual terms, and
transmit a copy to the Sub Court, Pala and District
Court, Kottayam.
Sd/-
S.S.SATHEESACHANDRAN,
JUDGE
//TRUE COPY//
P.A TO JUDGE
vdv