Kerala High Court
Laila vs Soosamma Chacko on 15 June, 2013
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
MONDAY, THE 20TH DAY OF MARCH 2017/29TH PHALGUNA, 1938
OP(C).No. 2880 of 2013 (O)
AGAINST THE ORDER IN I.A.NO.74 OF 2013 IN O.S.NO.357 OF 2011 ON THE FILE
OF THE PRINCIPAL SUB COURT, KOTTAYAM, DATED 15.6.2013.
PETITIONER: DEFENDANT:
LAILA, AGED 45, WIFE OF KADER
PRESENTLY RESIDING AT CHAKIRANTHODIYIL HOUSE
CHORAPPADOM, P.O.KAIRADI,
THIRUVAZHIYADU VILLAGE, CHITTOOR TALUK,
PALAKKAD DISTRICT.
BY ADVS.SRI.JOHN JOSEPH VETTIKAD
SRI.C.JOSEPH JOHNY
RESPONDENTS: PLAINTIFFS:
1. SOOSAMMA CHACKO, AGED 50,
WIFE OF K.M.CHACKO,
RESIDING AT KARIMADATH HOUSE
KARIKODE PO, PERUVA VIA.,
KOTTAYAM DISTRICT - 686 610.
2. SAJNA, AGED 24,
CHAKIRANTHODIYIL HOUSE, PERUMKUNNAM PO,
MANJALOOR VILLAGE, ALATHOOR TALUK,
PALAKKAD DISTRICT, NOW RESIDING AT KAIRADI PO,
THIRUVAZHIYAD VILLAGE, PALAKKAD DISTRICT- 678 510.
R2 BY ADV. SRI.P.K.NIJOY
R1 BY ADV. SRI.ALIAS M.CHERIAN
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 20-03-2017, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C).No. 2880 of 2013 (O)
APPENDIX
PETITIONER'S EXHIBITS
EXT.P1 TRUE COPY OF THE PLAINT IN O.S.NO.357/2011 OF THE
PRINCIPAL SUB COURT KOTTAYAM.
EXT.P2 TRUE COPY OF THE WRITTEN STATEMENT IN O.S.NO.357/2011 OF
THE PRINCIPAL SUB COURT KOTTAYAM.
EXT.P3 TRUE COPY OF THE APPLICATION FOR AMENDMENT
(IA.NO.74/2013) IN O.S. NO.357/2011 OF THE PRINCIPAL SUB
COURT KOTTAYAM.
EXT.P4 TRUE COPY OF THE OBJECTION DATED 26-2-2013
EXT.P5 TRUE COPY OF THE ORDER DATED 15-6-2013 IN I.ANO.74/2013 IN
O.S. NO.357/2011 OF THE PRINCIPAL SUB COURT KOTTAYAM.
RESPONDENTS' EXHIBITS: NIL
//TRUE COPY//
AHZ/
"C.R."
P.Somarajan, J.
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O.P.(C) No.2880 of 2013
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Dated this the 20th day of March, 2017
JUDGMENT
Challenging Ext.P5 order in I.A.No.74 of 2013 in O.S.No.357 of 2011 of the Principal Sub Court, Kottayam, dated 15.6.2013, the first defendant came up with this petition.
2. The said application was filed by the first respondent/ plaintiff for amending the plaint, incorporating a prayer for a declaration that the conveyance made by the defendant in favour of her daughter, who is not a party to the suit, is a fraudulent transfer intended to defeat the creditors. Another prayer for impleadment of the beneficiary under the document of transfer was also incorporated in the said application. The said application was allowed by the lower court, allowing impleadment of the defendant's daughter, the beneficiary under the settlement deed, as additional defendant in the suit (2nd defendant) and allowing amendment of the plaint. Aggireved by the said order, the first defendant came up with this petition.
3. Heard Sri.John Joseph Vettikad, learned counsel appearing for the petitioner, Sri.Alias M. Cherian, learned counsel appearing for O.P.(C) No.2880 of 2013 :: 2 ::
the first respondent and Sri.P.K.Nijoy, learned counsel appearing for the second respondent.
4. The amendment sought to be made in the plaint is to incorporate a prayer to declare that the settlement deed executed by the defendant in favour of her daughter as a sham document on the ground that it was created for the purpose of and with an intention to defeat and delay the creditors including the plaintiff herein. The original suit was filed by the plaintiff for recovery of money due from the defendant.
5. The application was objected by the defendant stating that the proposed amendment will alter the nature and character of the suit and it is not at all permissible to raise such an amendment in the present suit. The lower court, on hearing both the parties, repelled the contention raised by the defendant and allowed the application, granting amendment and impleadment.
6. Section 53 of the Transfer of Property Act, 1882 (hereinafter referred to as the 'T.P. Act') is really an exception to the general principle governing transfer of immovable property. The transfer of immovable property can be avoided if it was intended to defeat or delay the creditors of the transferor at the option of any O.P.(C) No.2880 of 2013 :: 3 ::
creditor. A transfer in good faith and for consideration is excluded. Section 53 of the T.P. Act is extracted below for reference:
"53. Fraudulent transfer.- (1) Every transfer of immovable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed.
Nothing in this sub-section shall impair the rights of a transferee in good faith and for consideration.
Nothing in this sub-section shall affect any law for the time being in force relating to insolvency.
A suit instituted by a creditor (which term includes a decree-holder whether he has or has not applied for execution of his decree) to avoid a transfer on the ground that it has been made with intent to defeat or delay the creditors of the transferor shall be instituted on behalf of, or for the benefit of, all the creditors.
(2) Every transfer of immovable property made without consideration with intent to defraud a subsequent transferee shall be voidable at the option of such transferee.
For the purpose of this sub-section, no transfer made without consideration shall be deemed to have been made with intent to defraud by reason only that a subsequent transfer for consideration was made." O.P.(C) No.2880 of 2013
:: 4 ::
7. Going by the 4th part of Section 53(1) of the T.P.Act, it is clear that a suit under Section 53 of the T.P.Act shall be instituted on behalf of, or for the benefit of, all the creditors. The present suit was instituted by the plaintiff in her personal capacity. It is not a suit either filed in a representative capacity or on behalf of some other persons. In order to bring a suit under Section 53 of the T.P.Act, the plaintiff must show, aver and plead that the suit was instituted for himself/herself and also for and on behalf of all the creditors. It should be a representative suit for the creditors. In a representative suit leave of the court has to be obtained by complying with the requirement under Order I Rule 8 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the C.P.C.'). In other words, when a suit under Section 53 of the T.P.Act is filed (other than a claim under Rule 58 of Order XXI of the C.P.C.) it must be for and on behalf of the creditors and it is the duty of the plaintiff to comply with the requirement under Order I Rule 8 of the C.P.C. so as to enable all the creditors to join as a party to the suit. It is not at all necessary that the plaintiff should know about the details of all the creditors or whether any other creditor is available or not while instituting such a suit. But the mandate under Order I Rule 8 of the C.P.C. has to be O.P.(C) No.2880 of 2013 :: 5 ::
complied with. In other words, it is not at all permissible to incorporate such a prayer in a suit for recovery of money filed by the plaintiff in her personal capacity. Hence, the order passed by the lower court allowing amendment of the plaint and impleading additional second defendant does not reflect proper application of the law in force. Hence the impugned order is liable to be set aside and I do so but without prejudice to the right of the plaintiff to institute a proper suit as per Lex fori Lex Loci.
In the result, this petition is allowed. The impugned order of the lower court allowing impleadment and amendment in I.A.No.74 of 2013 dated 15.6.2013 is hereby set aside. The application is hereby dismissed, without prejudice to the right of the first respondent/plaintiff to institute a proper suit in accordance with Lex fori and Lex Loci. No order as to costs.
P.Somarajan Judge ahz/