Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 5TH DAY OF AUGUST 2021 / 14TH SRAVANA, 1943 PETITIONERS:
1 BOBY MATHEW AGED 43 YEARS S/O MATHEW, KANNANTHARA HOUSE, KANAYANNUR TALUK, MULANTHURUTHY VILLAGE, MULANTHURUTHY.P.O, PIN-682 314, PRESENTLY RESIDING AT KANNANTHARA HOUSE, MEENACHIL TALUK, KURIANAD VILLAGE, MONIPALLY.P.O, KOTTAYAM DISTRICT, PIN-686 636. 2 FLORENCE BOBY AGED 34 YEARS W/O.BOBY MATHEW, KANNANTHARA HOUSE, KANAYANNUR TALUK, MULANTHURUTHY VILLAGE, MULANTHURUTHY P.O., PIN - 682 314, PRESENTLY RESIDING AT KANNANTHARA HOUSE, MEENACHIL TALUK, KURIANAD VILLAGE, MONIPALLY P.O., KOTTAYAM DISTRICT, PIN - 686 636. 3 ANTONY MATHEW AGED 33 YEARS S/O.LATE V.C.MATHEW, VADAKKEKOLLAMPARAMBIL HOUSE, THALAYOLAPARAMBU, VADAYUR, KOTTAYAM DISTRICT, PIN - 686 605, PRESENTLY RESIDING AT MEENACHIL TALUK, KURIANAD VILLAGE, MONIPALLY P.O., KOTTAYAM DISTRICT, PIN- 686 636. BY ADVS. JOHN MATHEW (THEREZHATH) SRI.R.JITHIN
RESPONDENTS:
1 THOMAS KURIYAN AGED 43 YEARS S/O KURIYAN, NADAKKAL HOUSE, MEENACHIL TALUK, THEKKEKARA VILLAGE, POONJAR, PERINGULAM.P.O, PIN-686 581. 2 SHEELA JOHN AGED 42 YEARS, W/O.THOMAS KURIYAN, NADAKKAL HOUSE, MEENACHIL TALUK, THEKKEKARA VILLAGE, POONJAR, PERINGULAM P.O., PIN - 686 581. BY ADVS. SRI.DINESH R.SHENOY SRI.BABY THOMAS SRI.EBIN MATHEW SRI.P.ROHIT PREMANANDAN SHENOY
THIS ARBITRATION REQUEST HAVING COME UP FOR ADMISSION ON 05.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
This matter was considered by this Court on an earlier occasion on 26.07.2021 and a submission was then made by the learned counsel for the applicants that this Arbitration Request is not being pressed.
2. However, the learned counsel for the respondents -
Sri.Dinesh R. Shenoy, opposed the same, asserting that Annexure A1 document is a fabricated one and that this Court had already directed the applicants through order dated 22.11.2019 in I.A.No.1/2019, to produce the original of the said document or to file an affidavit explaining why they cannot.
3. I had, therefore, directed the respondents to file an
affidavit before this Court, through order dated 26.07.2021; and when this matter was called today, Sri.John Mathew Therezhath, learned counsel for the applicants, submitted that an affidavit as directed by this Court has been placed on record.
4. When I examine the affidavit on record, it is clear that
the applicants now say that Annexure A1 document was not in their custody and that it had been handed over to the applicants as a “security measure and on a mutual arrangement” (sic) on 27.03.2017.
5. I am afraid that I cannot find the afore averment to be
accurate for various reasons, including that there is no contention in this Arbitration Request that the original agreement was not available with the applicants or that they had handed over the same to the respondents; and also because at no point of time before the Trial Court, was this disclosed.
6. Of course, the learned counsel appearing for the
applicants in the District Court has also filed Annexure A6 affidavit, wherein, he has taken responsibility for the omission in his clients not disclosing the afore factum before the said Court.
7. Therefore, in normal circumstances, this Court would
have been inclined to accept the request of the respondents for necessary action against the applicants under the provisions of Section 340 of the Code of Civil Procedure. However, I choose not to do so, taking note of the affidavit of the learned counsel appearing for the party in the Trial Court and also because I do not think that it will be now necessary for such an action, when the petitioner has undertaken before this Court that he will not use Annexure A1 in any manner before any Forum in future against the respondents.
I, therefore, allow the applicants to withdraw this Arbitration Request with costs to be paid to the respondents, which is fixed at Rs.10,000/-. The afore cost shall be paid to the respondents within a period of one week from today and necessary receipt for the same shall also be produced on record, failing which, the Registry shall post this matter for further consideration.
SD/- DEVAN RAMACHANDRAN JUDGE rp APPENDIX OF AR 105/2018 PETITIONER ANNEXURE ANNEXURE A1 THE TRUE COPY OF THE AGREEMENT FOR SALE DATED AND RESPONDENTS WITH RESPECT TO THE SUBJECT PROPERTIES. ANNEXURE A2 THE RELEVANT BANK STATEMENTS DURING THE DATES BETWEEN 30/06/2016 AND 31/03/2018 ISSUED BY THE CATHOLIC SYRIAN BANK OF VAIKOM BRANCH WITH RESPECT TO THE NRE ACCOUNT NO.017802068621191001.
ANNEXURE A3 TRUE COPY OF THE SALE DEED NO.1368/2016 OF KURAVILANGADU SRO EXECUTED BY 2ND RESPONDENT IN FAVOUR OF APPLICANTS 1 & 2. ANNEXURE A3(A) TRUE COPY OF THE SALE DEED NO.1393/2016 OF KURAVILANGADU SRO EXECUTED BY 2ND RESPONDENT IN FAVOUR OF APPLICANT 1 & 2. ANNEXURE A3(B) TRUE COPY OF THE SALE DEED NO.367/2017 OF KURAVILANGADU SRO EXECUTED BY 1ST RESPONDENT IN FAVOUR OF APPLICANT 1 & 2. ANNEXURE A4 THE TRUE COPY OF THE NOTICE DATED 06/04/2018 ISSUED BY THE APPLICANTS TO THE RESPONDENTS. ANNEXURE A4(A) THE TRUE COPY OF THE POSTAL RECEIPT AND THE ACKNOWLEDGMENT OF THE ANNEXURE-A4 NOTICE. ANNEXURE A5 THE TRUE COPY OF THE NOTICE DATED 21/07/2018 ISSUED BY THE APPLICANTS TO THE RESPONDENT. ANNEXURE A6 THE TRUE COPY OF THE RELEVANT POSTAL RECEIPT OF THE ANNEXURE - A5 NOTICE.