Kerala High Court
Jose Paul Kachappilly vs Reena Jose on 1 April, 2015
Author: C.K.Abdul Rehim
Bench: C.K.Abdul Rehim
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 1ST DAY OF FEBRUARY 2016/12TH MAGHA, 1937
OP (FC).No. 282 of 2015 (R)
----------------------------
AGAINST THE ORDER IN I.A.NO.1493/2014 IN I.A.NO.1069/2014 IN O.P.NO.301/2014 OF
FAMILY COURT, ERNAKULAM DATED 01.04.2015.
PETITIONER(S):
----------------------
JOSE PAUL KACHAPPILLY, AGED 60 YEARS,
S/O PAVIYANOS PAUL, KACHAPPILLY HOUSE,
CHAMPANNOOR, ANGAMALY SOUTH-683 573,
ERNAKULAM DISTRICT.
BY ADVS.SRI.B.S.SURESH KUMAR
SRI.V.P.POULOSE
RESPONDENT(S):
------------------------
REENA JOSE, AGED 58 YEARS,
W/O JOSE PAUL, KACHAPPILLY HOUSE, VILLA NO.5,
INFRA MEADOWS, CHITTETHUKARA -682 037, AANJIKATH ROAD,
OFF AIRPORT-SEAPORT ROAD, KAKKANAD, ERNAKULAM DIST.
BY ADVS. SRI.P.T.DINESH
SMT.SINDHU S KAMATH
THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 01-02-2016, ALONG
WITH OP(FC). 288/2015, THE COURT ON THE SAME DAYDELIVERED THE FOLLOWING:
P.T.O.
OP (FC).No. 282 of 2015 (R)
----------------------------
APPENDIX
PETITIONER(S)' EXHIBITS
-------------------------------------
EXT.P1: TRUE COPY OF THE IA NO. 1493/2014 IN I.A.NO 1069/2014 IN O.P. NO.
301/2014 ON THE FILES OF FAMILY COURT AT ERNAKULAM.
EXT.P2: TRUE COPY OF THE ORDER DATED 30/4/2014 IN IA NO. 1493/2014 IN
I.A.NO.1069/2014 IN O.P.NO. 301/2014 ON THE FILES OF FAMILY COURT AT
ERNAKULAM.
EXT.P3: TRUE COPY OF THE COUNTER IN I.A. NO. 1493/2014 IN I.A.NO. 1069/2014 IN
IN OP NO. 301/2014 ON THE FILES OF FAMILY COURT.
EXT.P4: TRUE COPY OF THE ORDER DATED 13/2/2014 PASSED IN IA NO. 496/2014
IN IN OP NO. 301/2014 ON THE FILES OF FAMILY COURT AT ERNAKULAM.
EXT.P5: TRUE COPY OF THE IA NO. 496/2014 IN OP NO. 301/2014 ON THE FILES OF
FAMILY COURT AT ERNAKULAM.
EXT.P6: TRUE COPY OF THE OP NO. 301/2014 FILED BY THE RESPONDENT ON
THE FILES OF FAMILY COURT AT ERNAKULAM.
EXT.P7: TRUE COPY OF THE ALLEGED LOAN AGREEMENT LETTER WHICH IS THE
SUBJECT MATTER OF THE QATAR CIVIL COURT .
EXT.P8: TRUE COPY OF THE E-MAIL DATED MARCH 11, 2011 SENT FROM THE E-
MAIL ID OF THE RESPONDENT.
EXT.P9: TRUE COPY OF THE ORDER IN ARABIC AND ITS TRANSLATED COPY IN
ENGLISH PRONOUNCED BY THE QATAR CIVIL COURT DIRECTING THE
PETITIONER TO PAY AN AMOUNT OF QAR 130,000/-.
EXT.P10: CERTIFIED COPY OF THE ORDER DATED 1/4/15 IN IA NO. 1493/2014 IN
I.A.NO 1069/2014 IN OP NO. 301/2014 ON THE FILES OF FAMILY COURT AT
ERNAKULAM.
EXT.P11: TRUE COPY OF THE ORDER IN O.P.(CRL.) NO.168/2015 BEFORE THIS
HONOURABLE COURT.
RESPONDENT(S)' EXHIBITS
---------------------------------------
EXHIBIT R1: TRUE COPY OF I.A.NO.1069 DATED 21.03.2014 FILED BEFORE the COURT
BELOW FOR A DIRECTION TO FREEZE THE ACCOUNTS.
EXHIBIT R2: TRUE COPY OF THE LIST OF DOCUMENTS DATED 14.01.2015 FILED
BEFORE THE HON'BLE FAMILY COURT, ERNAKULAM.
P.T.O.
OP (FC).No. 282 of 2015 (R) :-2-:
EXHIBIT R3: TRUE COPY OF THE E-MAIL SENT ON 10.11.2013.
EXHIBIT R4: TRUE COPY OF THE LETTER NO.DOH/CONS/415/09/2013 DATED 04.12.2013
BY THE DEPUTY CHIEF OF MISSION, THE EMBASSY OF INDIA.
EXHIBIT R5: TRUE COPY OF THE LETTER NO.DOH/CONS/415/09/2013 DATED 04.12.2013
BY THE DEPUTY CHIEF OF MISSION, THE EMBASSY OF INDIA TO THE
SECRETARY GENERAL, NATIONAL HUMAN RIGHTS COMMITTEE.
EXHIBIT R6: TRUE COPY OF RELEVANT PART EMPLOYMENT AGREEMENT WITH
ARABIAN OVERSEAS TRADING & SERVICES CO.
EXHIBIT R7: TRUE COPY OF SALARY CERTIFICATE ISSUED BY EXXONMOBIL DATED
16.04.2012.
//TRUE COPY//
P.S. TO JUDGE
St/-
C.K. ABDUL REHIM
&
SHAJI P. CHALY, JJ.
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O.P.(FC) Nos.282 & 288 of 2015
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Dated this the 1st day of February, 2016
JUDGMENT
Shaji P. Chaly, J.
O.P.(FC) No.282 of 2015 is filed by the respondent against the order passed by the Family Court, Ernakulam in I.A.No.1493 of 2014 in I.A.No.1069 of 2014 in O.P.No.301 of 2014 dated 01.04.2015. By the said order, the Family Court refused to vacate the order freezing the Accounts maintained by the respondent with Additional respondents 2 to 10 and thereby the ad-interim order dated 30.04.2014 of freezing the account was made absolute.
2. O.P.(FC) No.288 of 2015 is filed by the respondent against the order passed by the Family Court in I.A.No.496 of 2014 in O.P.No.301 of 2014 dated 09.02.2015, whereby the Family Court has made absolute, the attachment over plaint 'A', 'B', 'C' and 'D' schedule properties. It is also observed that the attachment of 'A' to 'D' schedule properties is made for an amount of Rs.1 Crore. These attachments were sought for to secure a probable decree of the Family Court for an amount of O.P.(FC) No.282 & 288 of 2015 2 Rs.4 Crores claimed by the respondent in the Original Petition.
3. Since the Original Petitions are filed against the interlocutory orders passed in the very same Original Petition before the Family Court and the subject matter of the Original Petitions are intrinsically connected, they are disposed of together by this common judgment.
4. The facts required for disposal of the Original Petitions are common in nature and therefore common facts alone are required for the disposal of these Original Petitions. The Original Petition is filed by the respondent contending that the petitioner and the respondent are husband and wife, whose marriage was solemnized on 28.02.1982 in accordance with Christian religious rites and ceremonies. In the said wedlock, two children were born named Neenu and Jerry, now aged 28 and 25 years respectively. At the time of marriage, the parents of the respondent entrusted Rs.50,000/- and 25 sovereigns of gold ornaments with the petitioner. After the marriage, the petitioner and the respondent were residing together at the parental house of the petitioner. After some time, it is contended by the respondent that, she understood that the petitioner had illicit relationship with several ladies O.P.(FC) No.282 & 288 of 2015 3 and when questioned about the same, respondent was manhandled brutally. Apart from the same, several allegations are made in the petition filed by the respondent before the Family Court seeking realization of an amount of Rs.4 Crores from the petitioner and his assets, and for other related reliefs.
5. It is the contention of the respondent that the petitioner resigned his job in Hindustan Lever and went to Saudi Arabia and thereafter he went to Doha and secured a job in the Ministry of Water Treatment as a Chemist. Thereafter, the petitioner started business of chemical trading. It is also the case of the respondent that she worked in reputed companies in Qatar and was drawing very good salary. It is also contended that the petitioner was only getting half of the income that was received by the respondent. It is also the case of the respondent that, believing the words of the petitioner, whatever earnings she has made was entrusted with the petitioner in order to make investments for the well- being of the family and thinking that it will be an asset to them in future. It is the further case that she had entrusted the entire hard-earned money with the petitioner and utilizing the same, he has purchased several immovable properties in his O.P.(FC) No.282 & 288 of 2015 4 name as well as in the joint name of both parties. It is the specific contention of the respondent that since the properties are purchased by the petitioner with the money earned by the respondent, she is entitled to realise the same and it is accordingly the suit is filed by the respondent to realise the said amounts.
6. Along with the Original Petition, respondent had filed I.A.No.1069 of 2014 seeking to freeze the accounts of the petitioner maintained with Additional respondents 2 to 10. I.A.No.1493 of 2014 is an application filed to implead the respective Banks as additional respondents 2 to 10. By an order dated 13.04.2014, the Family Court directed in the above specified I.A., to freeze the account in the name of the petitioner until further orders. While passing the said order of freezing the bank accounts, already there was an order of attachment passed by the court below against 'A', 'B' and 'D' schedule properties as per its order in I.A.No.496 of 2014 dated 13.02.2014, by which, Family Court had also issued notice to the petitioner to show cause why he should not furnish security of Rs.1 Crore on or before 12.03.2014. In the said I.A., petitioner entered appearance and filed counter O.P.(FC) No.282 & 288 of 2015 5 affidavit and thereafter the same was heard finally on 09.02.2015 and the Family Court confirmed the ad-interim order of attachment dated 13.02.2014, and apart from the same, ordered attachment of 'C' schedule immovable property also. Even though in the said order of confirmation Family Court has observed that the attachment ordered against 'E' and 'F' is lifted, there was no order of ad-interim attachment ordered by the Family Court against 'E' and 'F' schedule, as per its original order.
7. While matters being so, I.A.No.1493 of 2014 in I.A.No.1069 of 2014 was heard on 01.04.2015 and the ad- interim order of freezing the Bank accounts maintained by the petitioner with additional respondents 2 to 10 was made absolute. It is thus challenging Ext.P8 final order in I.A.No.496 of 2014, petitioner has preferred O.P.(FC) No.288 of 2015 and Ext.P10 final order passed in I.A.No.1493 of 2014 in I.A.No.1069 of 2014 in O.P.No.301 of 2014, O.P.(FC) No.282 of 2015 is filed.
8. Petitioner has filed objection to the interlocutory applications refuting the statements and allegations made by the respondent and further contending that, the investments O.P.(FC) No.282 & 288 of 2015 6 are made with the money earned by him and the respondent has no manner of claim over the same. It is also contended that there is no evidence produced by the respondent in order to establish her claim even prima facie before the court, so as to secure an order of attachment. Thus it is contended that, there was no occasion for the court below to have exercised its power of satisfaction to pass an order of attachment under Order XXXVIII. It is also contended that as per the law in Qatar, money can be transferred only through Bank and if the respondent has transferred any money to the petitioner, the same will be reflected in the bank account here and therefore if the respondent had actually handed over any money to the petitioner, respondent can establish the same by simply producing the bank account.
9. Heard learned counsel for the petitioner and learned counsel for the respondent.
10. The main contention advanced by the petitioner is that the entire immovable properties covered by petition schedule 'A' to 'D' and the joint property covered by 'E' and 'F' are purchased with the earnings made by the petitioner from the business conducted by him at Qatar. The respondent was O.P.(FC) No.282 & 288 of 2015 7 taken abroad by the petitioner and a job was secured to her by the petitioner. Therefore, it is the contention of the petitioner that the respondent has no manner of claim against the said properties. The intention of the respondent is only to harass the petitioner and coerce him to part with the money earned by him. That apart, it is contended by the petitioner that the respondent has not produced any evidence even to establish prima facie that, she is entitled to secure an attachment of 'A' to 'D' schedule properties. Therefore there was no requirement at all to freeze the Bank accounts maintained by the petitioner. It is also the specific contention of the petitioner that the attachment effected should be in commensurate with the decree sought for by the respondent and therefore the respondent was not free and at liberty to seek freezing of accounts maintained by the petitioner with additional respondents 2 to 10. It is also contended by the petitioner that the Family Court has not cared to take into account the attachment effected against the immovable properties while ordering freezing of Bank accounts maintained by the petitioner and therefore there was no application of mind on the part of the Family Court. It is the further O.P.(FC) No.282 & 288 of 2015 8 contention of the petitioner that the present value of the immovable properties attached is more than Rs.6 Crores and therefore the Family Court was not at all right in freezing the Bank accounts of the petitioner.
11. On the other hand, learned counsel for the respondent contended that there was no proof before the Family Court, as contended by the petitioner that the immovable properties covered by 'A' to 'D' schedule has a value of more than Rs.6 Crores. That apart, it is contended that the respondent was very well employed in Qatar and she was drawing very high salary and earned more income than the petitioner and it was utilizing her earnings only the immovable properties were purchased by the petitioner. It is contended by the learned counsel for the respondent that the claim of the respondent is Rs.4 Crores and 'A' to 'D' petition schedule properties are not sufficient enough to realize an amount of Rs.4 Crores, that may be passed by the Family Court, and therefore the freezing of the Bank accounts maintained by the petitioner with additional respondents 2 to 10 was absolutely necessary and it was in that background, the Family Court has passed the order of freezing the Bank O.P.(FC) No.282 & 288 of 2015 9 accounts. It is also the contention of the respondent that while ordering the freezing of the Bank accounts, the Family Court was well aware that there is an order in existence of the immovable properties attached and therefore the Family Court was satisfied that the immovable properties may not be sufficient to cover up the possible decree that may be passed, as claimed by the respondent.
12. We have considered the rival submissions and perused the pleadings and records. From a perusal of the orders passed by the Family Court, making the order of freezing the Bank accounts absolute and the order of attachment absolute, we are of the considered opinion that the Family Court has not taken into account the valuation of the immovable properties attached. The Family Court has not even referred to attachment of immovable properties in 'A', 'B' and 'D' schedule while passing the ad-interim order of freezing of the Bank accounts of the petitioner. That apart, while making absolute the attachment of the immovable properties 'A', 'B' and 'D' and making the order of attachment against 'C' schedule property, the Family Court did not consider the ad- interim order of freezing of Bank accounts. So much so, while O.P.(FC) No.282 & 288 of 2015 10 the Family Court made the order of freezing absolute on 01.04.2015, it did not take into consideration the order making the attachment of immovable properties absolute dated 09.02.2015. In our view, there was no proper application of mind while the Family Court made the orders of attachment of immovable properties and freezing of the accounts absolute. Moreover, we find that the ad-interim order of attachment was confined by the court below to an amount of Rs.1 Crore alone, taking into account the facts and circumstances of the case. While confirming the order of attachment, Family Court went on a different tangent and held that the order of ad-interim attachment over the scheduled immovable properties is only to secure an amount of Rs.1 Crore alone. In our view, that was not a proper view taken by the Family Court. In the ad-interim order of attachment of immovable properties, the court below has confined the attachment to Rs.1 Crore alone after taking into account the pleadings and records available with the Family Court at that point of time regarding the claim and the same is not a circumstance for the Family Court to pass further orders of attachment, without being prima facie satisfied of the claim raised by the respondent.
O.P.(FC) No.282 & 288 of 2015 11
13. It is true that while making the order of attachment absolute under the provisions of law, after hearing both the parties, the court below is at liberty to confirm the attachment already passed and order attachment of further properties.
14. The power conferred under the provisions of Order XXXVIII of the Code of Civil Procedure should be exercised by the courts cautiously and with utmost circumspection, since the same will cause oppression to the party at the receiving end. In order to secure an order of attachment, one must have projected a clear case and the court considering the same should be satisfied that a prima facie case is established to secure a decree in order to pass an order of attachment and further that the opposite party is likely to alieniate the property to defeat a probable decree that may be passed by the court. The order of attachment passed by the court should be taking into account the pleadings in the suit and the averments in the interlocutory application documents produced along with it, the contentions raised by the opposite party and the documents produced by the opposite party. Even if an ex parte order is passed, it should be done by the court after due and proper enquiry. On mere asking, attachment cannot be O.P.(FC) No.282 & 288 of 2015 12 granted. The satisfaction so arrived at by the court should be reflected in the order.
15. From the orders passed by the Family Court making the freezing absolute, and the attachment of the immovable properties absolute, we do not think that the Family Court has applied its mind properly to the fact situations involved in the case. The order of attachment cannot be passed by the Family Court in a mechanical manner. As we have already pointed out, the attachment ordered can only be commensurate with the possible decree that may be passed by the court prima facie taking into account the pleadings and records produced before the court. Such a situation is not discernible from the impugned orders Exts.P10 and P8 respectively, in the captioned Original Petitions. In that circumstances, we have no other option than to arrive at a conclusion that the Family Court has misdirected itself while passing Exts.P10 and P8 orders respectively.
16. Therefore, Ext.P10 order dated 01.04.2015 in O.P. (FC) No.282 of 2015 and Ext.P8 dated 09.02.2015 in O.P.(FC) No.288 of 2015 are quashed and direct the Family Court to re- consider both the interlocutory applications in accordance with O.P.(FC) No.282 & 288 of 2015 13 law, within a period of two weeks from the date of receipt of a copy of this judgment.
17. However, in the interests of justice, the ad-interim order of attachment of immovable properties 'A' to 'D' and the freezing of Bank accounts of the petitioner maintained with additional respondents 2 to 10 are maintained by us till a decision is taken by the Family Court, in accordance with the directions contained above. Needless to say, the parties shall be provided with sufficient opportunity to contest the proceedings.
The Original Petitions are allowed accordingly.
Sd/-
C.K. ABDUL REHIM JUDGE Sd/-
SHAJI P. CHALY JUDGE //true copy// P.S. to Judge St/-
02.02.2016