JUDGMENT

Dated this the 5th day of November 2021 The challenge in this original petition is against Ext.P4 order, restraining the second respondent from disbursing Rs.1,92,06,325/- due to the petitioners and directing the petitioners to furnish security to the tune of Rupees Two Crores to satisfy the probable decree, or to show cause as to why such security should not be furnished.

2. The short facts leading up to the issuance of Ext.P4 order, are as under;

The petitioners are the defendants in O.S No.38 of 2020 on the files of the Sub court, Kochi. The suit is filed by the first respondent for recovery of Rs.1,92,06,325/- from the defendants and its assets. Along with the suit, the first respondent filed Ext.P2 application under Order 21 Rule 46 and Order 39 Rule 1 of CPC, to prohibit the petitioners from recovering an amount of Rs.1,92,06,325/- due to it from the third respondent and to restrain the third respondent from paying the said amount to the petitioners. The first respondent also filed Ext.P3 application under Order 38 Rule 5 seeking to attach certain vehicles and machineries belonging to the petitioners. Accordingly, the impugned Ext.P4 order was passed by the trial court.

3. The grievance of the petitioner is that the order is passed without considering the mandatory requirements under Order 21 Rule 46 and Order 38 Rule 5 of CPC. Alternatively, it is contended that the Sub Court, Kochi is devoid of jurisdiction to entertain the suit, since the dispute, between parties falls within the definition of Commercial Dispute under Section 2(1)(c) of the Commercial Courts Act ('the Act' for short).

4. In my considered opinion, the challenge is premature inas much as the petitioners remedy is to show cause against the proposed attachment. Likewise, as against Ext.P2 order, the garnishee/third respondent is entitled to show cause under Order 21 Rule 46A. The contention that the dispute is a commercial dispute under Section 2(1)(c) of the Act, cannot be considered in these proceedings.

5. Learned counsel for the petitioner submitted that the amount has already been released to the petitioners and the garnishee proceedings have become infructuous. It is submitted that in view of the subsequent developments the petitioners should be permitted to offer immovable property as security. This submission ought to be made before the trial court, for which the petitioners are at liberty.

The original petition is hence disposed of, reserving the petitioners' liberties, as aforementioned.

Sd/-

V.G ARUN JUDGE

SJ

APPENDIX OF OP(C) 1568/2020 PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE PLAINT DATED 17.08.2020 IN O.S.NO.38/2020 PRESENTED ON 26.08.2020 ON THE FILES OF SUB COURT, KOCHI.

EXHIBIT P2 A TRUE COPY OF THE I.A.NO.1/2020 IN O.S.NO.38/2020 ON THE FILE OF SUB COURT, KOCHI.

EXHIBIT P3 A TRUE COPY OF THE I.A.NO.2/2020 IN O.S.NO.38/2020 ON THE FILE OF SUB COURT, KOCHI.

EXHIBIT P4 A TRUE COPY OF THE ORDER 26.08.2020 IN I.A.NO.1/2020 IN O.S.NO.38/2020 ON THE FILES OF SUB COURT, KOCHI.

EXHIBIT P5 A TRUE COPY OF THE NOTIFICATION GO(MS)NO.51/2020/HOME DATED 24.02.2020.

RESPONDENT EXHIBITS EXHIBIT R2 A TRUE COPY OF THE LETTER DATED 25.09.2018 ISSUED TO THE REPONDENT.

EXHIBIT R2 B TRUE COPY OF THE JOINT BID AGREEMENTDATED

18.04.2018 EXHIBIT R2 C TRUE COPY OF THE CONTRACT AGREEMENT DATED

09.10.2018 EXHIBIT R2 D TRUE COPY OF THE RELEVANT PAGE OF IPC/9 PAYMENT NOTE EXHIBIT R2 E TRUE COPY OF THE LETTER DATED 14.04.2019 ISSUED TO AUTHORITIES ENGINEER EXHIBIT R2 F TRUE COPY OF THE LETTER DATED 31.10.2020 TO THE PROJECT DIRECTOR PIU NHAI TRIVANDRUM