IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 15TH NOVEMBER 2011 / 24TH KARTHIKA 1933 WA.No. 1629 of 2011 --------------------- AGAINST THE JUDGEMENT IN WPC.19556/2011 Dated 22/08/2011 .................... APPELLANT/PETITIONER: -------------------------- A.MOHAMMED, AVVATHOTTIL HOUSE PATHIMAGALAM PO, KUNNAMMANGALAM KOZHIKODE. BY ADV. SRI.O.D.SIVADAS RESPONDENTS/RESPONDENTS: ---------------------------------- 1. THE MANAGING DIRECTOR KERALA FINANCIAL CORPORATION HEAD OFFICE VELLAYAMBALAM, THIRUVANANTHAPURAM - 695 033. 2. THE BRANCH MANAGER KERALA FINANCIAL CORPORATION KALPATTA, WAYANAD - 673 121. BY ADV. SRI.R.S.KALKURA THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 15/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Manjula Chellur, Ag. C.J. & P.R.Ramachandra Menon, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A. No. 1629 OF 2011 and C.M. Appln. No. 959 of 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of November, 2011 JUDGMENT Manjula Chellur, Ag. C.J. Heard the learned counsel for the appellant. 2. C.M. Appln. No. 959 of 2011 filed for condoning delay of 33 days in filing the appeal is allowed. 3. The appeal is directed against the refusal of the relief sought by the appellant who was a surety for the borrower who borrowed loan from the respondent bank. It is not in dispute that much prior to the settlement of terms as per Ext.P2 One Time Settlement proposal dated 04.12.2008, on 26.12.2007 a sum of `.1,00,000/-(Rupees one lakh) came to be paid under two receipts as per Ext.P1 by the appellant to the respondent Bank. The claim of the appellant is that `.1 lakh was an advance towards One Time Settlement Scheme, therefore, `.10,50,000/- (Rupees ten lakhs fifty thousand) indicated at Ext.P2 have to be understood as including the earlier payment of `.1 lakh. The W.A. No. 1629 of 2011 -:2:- main contention of the appellant seems to be that he was under such impression because of a statement in the receipt at Ext.P1 that the One Time Settlement repayment is pending appropriation of `.1 lakh would be taken into consideration for One Time Settlement. The gap between Exts.P1 and P2 is almost one year. 4. In all probability there seems to be another settlement proposal earlier between the parties. Even otherwise, at the time of coming out with Ext.P2 proposal, if the intention of the respondent Bank was to consider this `.1 lakh, it would have been incorporated as one of the terms of One Time Settlement. However, the reference at Ext.P2 indicates that the request made by the appellant for settling the loan account is by remitting `.10.50 lakhs. 5. In that view of the matter, the settlement came to be settled at `.10.50 lakhs subject to the terms and conditions indicated at Ext.P2. None of the documents would suggest that the respondent authorities had promised to adjust the payment of `.1 lakh towards `.10.50 lakhs. Therefore, we are of the W.A. No. 1629 of 2011 -:3:- opinion that no interference is warranted so far as the judgment of the learned Single Judge. Accordingly, the Writ Appeal is dismissed. We also note that because of the statement of pendency of the OTS proposal, the appellant must have been under an bona fide impression that this amount of `.1 lakh would be considered while settling the account of the borrower. Having regard to the pendency of the representation of the appellant for such adjustment, we are of the opinion that, if the appellant remits `.1 lakh together with interest at the rate of 10% per annum from 30.01.2009 till the date of payment within eight weeks from today, the Respondent Corporation shall record full satisfaction of the payment and release the documents subject to the compliance of other conditions at Ext.P2. Manjula Chellur, Ag. Chief Justice. P.R.Ramachandra Menon, Judge. ttb