MRS GLADIS ALMEIDA v. MRS CARMELINE PEREIRA

( By Sri. UMASHANKAR M N ) AND : 1 MRS CARMELINE PEREIRA AGED about 32 YEARS W/O LATE MR EVEREST PEREIRA R/AT C-3, FLAT NO.6, CHIRA NAGAR, SANTHA CAURZ WEST, MUMBAI 400 054 2 MR AGNELLA EVEREST PEREIRA AGED about 32 YEARS S/O LATE MR EVEREST PEREIRA R/AT C-3, FLAT NO.6, CHIRA NAGAR, SANTHACAURZ WEST, MUMBAI 400 054 - 2 - 3 MRS AGNELLA EVEREST PEREIRA AGED about 29 YEARS D/O LATE MR EVEREST PEREIRA R/AT C-3, FLAT NO.6, CHIRA NAGAR, SANTHACAURZ WEST, MUMBAI 400 054 4 THE RESERVE BANK OF INDIA HEAD OFFICE, MUMBAI REPRESENTED BY ITS GOVERNOR 5 THE RESERVE BANK OF INDIA REGIONAL OFFICER NRUPATHUNGA ROAD, BANGALORE REPRESENTED BY ITS REGIONAL MANAGER 6 THE KARNATAKA BANK UDUPI BRANCH, UDUPI, Rep.Manager. 7 THE STATE BANK OF INDIA KANAKANADY, MANGALORE REPRESENTED BY BRANCH MANAGER ...RESPONDENTS ( By Sri Yadava, K for M/s. A.Nagarajappa & assets for R-1 & R-2. Sri Y.Rajendra Prasad Shetty – Adv.for R-3, Sri S.Kalyan Basavaraj – Adv.for R-4, Sri H.N.Vasantha – Adv.for R-7) - o 0 o - - 3 - THIS W.P. IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER AT ANNEXURE-A DATED 1-10-2010 PASSED BY THE II ADDL.SENIOR CIVIL JUDGE, MANGALORE, IN M.A.16/2010 AND THE ORDER AT ANNEXURE-B DATED 20.2.2009 IN O.S. NO.593 OF 2007 PASSED BY THE I ADDL. CIVIL JUDGE (JR.DVN.) AT MANGALORE D.K. This W.P coming on for Prl.hearing in 'B' group this day, the Court passed the following:- O R D E R This writ petition is directed against the order dated 1- 10-2010 in M.A.No.16/2010 passed by the II Addl.Senior Civil Judge at Mangalore confirming the order dated 20-2- 2009 passed in O.S.No.593/2007 by the I Addl.Civil Judge (Jr.Dn), Mangalore, on an application filed under Order 39 Rules 1 and 2 of Code of Civil Procedure (CPC).

2. The relevant facts of the case are that respondents 1 to 3 herein, who are plaintiffs, have filed a suit before the I Addl.Civil Judge (Jr.Dn) at Mangalore, seeking the following reliefs:- - 4 - “(i) For the declaration that the plaintiffs are entitled to realize the money belonged to Late Mr.Everest Periera, invested in RBI Bonds by the 1st defendant with interest accrued thereon and also the money invested in fixed deposit in 4th defendant Bank and re-invested the same in the name of third party elsewhere, after having withdrawn the said deposits from the 4th defendant Bank. ii) For mandatory injunction directing the defendant No.2 and 3 or such defendant found liable among themselves to pay the money involved in RBI Bonds with interest accrued thereon to the plaintiffs and also directing defendant No.1 to hand over the money belonged to Late Mr.Everest Periera wherever she has invested either in her name or in the name of third party with interest accrued thereon. iii) For the cost of the suit. iv) And grant such other and further reliefs as court deems fit under the circumstances of the case in the interest of justice and equity”. Along with the plaint, an application under Order 39 Rules 1 and 2 CPC seeking an order of temporary injunction restraining the defendant in the suit, i.e., the petitioner herein, from claiming or getting released the amount deposited in the - 5 - RBI Bonds, was sought. The said application was allowed by the trial Court. Being aggrieved by the said order, the petitioner herein filed M.A.No.16/2009 before the II Addl.Senior Civil Judge, Mangalore. The appeal has also been dismissed. It is under these circumstances that the writ petition has been filed.

3. I have heard the learned counsel for the petitioner, learned counsel for respondents 1 to 3 and the learned counsel for other respondents and perused the material on record.

4. The main contention raised by the learned counsel for the petitioner is that the suit itself is not maintainable as the Court of Civil Judge (Jr.Dn) at Mangalaore had no pecuniary jurisdiction to try a suit involving an amount of Rs.2,75,000/- and therefore the plaint should have been returned by the trial Court instead of considering the application for grant of temporary injunction. It is therefore submitted that the orders passed by the Courts below are to be set aside and the suit of the plaintiffs should be dismissed. - 6 -

5. Per contra, counsel for respondents 1 to 3 has stated that no application was filed by the petitioner herein seeking for dismissal of the suit on the ground of pecuniary jurisdiction and in the absence of such relief being sought by the petitioner herein, the Courts below were right in granting such an injunction, which orders do not call for any interference in this writ petition.

6. Respondents 4 to 6 are served and unrepresented.

7. Counsel for respondent No.7 states that the order does not in any way impact the said respondent.

8. Having heard the counsel for the parties and perusal of the material on record, it is clear that the dispute between the parties is with regard to deposit of Rs.two crore seventy five lakhs in RBI Bonds which is said to have been deposited by the petitioner herein and which amount, according to respondents 1 to 3, belong to deceased Everest Periera, who was the husband of respondent No.1 herein and father of respondents 2 and 3 herein. - 7 -

9. Though the application under Order 39 Rules 1 and 2 CPC has been considered by the trial Court as well as the first appellate Court, it is noticed that the same has been done in the absence of there being any specific application filed either by the petitioner herein or the respondent with regard to rejection of the plaint or return of the plaint under Order 7 Rule 11 or under Order 7 Rule 10 CPC respectively. In the absence of there being any such application, there has been no consideration of the case from that angle. Both the Courts below only considered as to whether respondents 1 to 3 had made-out a prima facie case and as to whether the balance of convenience was in their favour with regard to the grant of injunction against the petitioner herein.

10. Therefore, having regard to the interest of both the parties and also in the interest of justice, the petitioner as well as respondents are at liberty to file their respective applications either under Order 7 Rule 11 or under Order 7 Rule 10 CPC, if they are so advised. The trial Court to - 8 - consider such application and pass orders in accordance with law.

11. Till orders are passed on such application, the orders impugned in this writ petition shall operate.

12. Writ Petition is disposed of in the aforesaid terms. Sd/- JUDGE MP