IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 12TH APRIL 2011 / 22ND CHAITHRA 1933 RFA.No. 246 of 2011 ----------------------------- [THE JUDGEMENT AND DECREE IN O.S. NO. 871/2008 DTD. 30/11/2010 OF THE PRINCIPAL SUBORDINATE JUDGE, IRINJALAKUDA] ............. APPELLANTS/DEFENDANTS 1 & 8: -------------------------------------------------- 1. P.M. MUHAMMED SALIM, AGED 63 YEARS, S/O. PUNNILATH MOIDEEN BAVA, MANAGING DIRECTOR, COCHIN BEARING CENTRE, 35/2509, BHAGYA THARA ROAD, NEAR ABAD FLAT, KARUKAPPILLY JUNCTION, EDAPPALLY NORTH VILLAGE, KANAYANNUR TALUK. 2. COCHIN BEARING CENTRE, P.B. NO. 4206, JUDGES AVENUE, KALOOR, COCHIN – 17, REPRESENTED BY THE MANAGING DIRECTOR, P.M. MUHAMMED SALIM, AGED 63 YEARS, S/O. PUNNILATH MOIDEEN BAVA, BHAGYA THARA ROAD, NEAR ABAD FLAT, KARUKAPPILLY JUNCTION, EDAPPALLY NORTH, VILLAGE, KANAYANNUR TALUK. BY ADVS. SRI.JOHN NUMPELI (JUNIOR), SRI. MINIMOL K.M. RESPONDENTS/PLAINTIFFS & DEFENDANTS 2 TO 7: ---------------------------------------------------------------------------- 1. MUHAMMED SAGEER, AGED 52 YEARS, S/O AYYARIL ABDUL RAHIMAN, KADARIYA MANZIL, ERIYAD VILLAGE, KODUNGALLUR TALUK. 2. SAJITHA SAGEER, AGED 44 YEARS, W/O. AYYARIL MUHAMMED SAGEER, ERIYAD VILLAGE, KODUNGALLUR TALUK. R.F.A. NO.246/2011-A: 3. A.A. RAHIM, AGED 43 YEARS, BUSINESS, S/O. ANDIYAKATHU ABDUL KHADAR, PARTNER COCHIN BEARING CENTRE, KAIPAMANGALAM VILLAGE, KODUNGALLUR TALUK. 4. N.A. ABDUL RAHIM, AGED ABOUT 41 YEARS, BUSINESS, NJARAKATTIL ABDUL KHADAR, PARTNER COCHIN BEARING CENTRE, KAIPAMANGALAM VILLAGE, KODUNGALLUR TALUK. 5. K.K. ABUBECKER, AGED ABOUT 68 YEARS, BUSINESS, S/O. KARUKAPADATH VEDIYIL KOCHUNNI, PARTNER COCHIN BEARING CENTRE, NEAR KOCHIN PUBLIC SCHOOL, THRIKKAKARA, VAZHAKKALA VILLAGE, KANAYANNUR TALUK. 6. P.M. MOHAMMED, AGED 69 YEARS, S/O. PUNNILATH MOIDEEN BAVA, PARTNER COCHIN BEARING CENTRE, B.T.S. AVENUE ROAD, NEAR KEERTHI NAGAR, ELAMAKKARA.P.O., EDAPPALLY NORTH VILLAGE, KANAYANNUR TALUK. 7. P.M. MUHAMMED SANIL, AGED 29 YEARS, BUSINESS, S/O. PUNNILATH MUHAMMED SALIM, PARTNER COCHIN BEARING CENTRE, BHAGYA THARA ROAD, NEAR ABAD FLAT, KARUKAPPILLY JUNCTION, EDAPPALLY NORTH VILLAGE, KANAYANNUR TALUK. 8. P.M. HARIS, AGED ABOUT 32 YEARS, BUSINESS, S/O. PUNNILATH MOHAMMED, PARTNER, COCHIN BEARING CENTRE, B.T.S. AVENUE ROAD, NEAR KEERTHI NAGAR, ELAMAKKARA.P.O., EDAPPALLY NORTH VILLAGE, KANAYANNUR TALUK. BY THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 12/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. THOTTATHIL B. RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ R.F.A. No. 246 of 2011 A ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Dated this the 12th day of April, 2011 J U D G M E N T ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Thottathil B. Radhakrishnan, J. Two among the defendants in a suit for recovery of money are the appellants. The plaintiff sued for recovery of money due on the basis of an alleged deposit of `1,50,000/- with the defendants. Out of the 9 defendants, two remained ex-parte. Defendants 1, 6 and 8 filed a written statement. Defendants 4, 5 and 7 filed another written statement. These two set of defendants stand to accuse each other about the conduct of the defendants themselves. The court below granted a decree only for a recovery of `1,50,000/- with RFA No.246/2011 : 2 : 6% interest from the date of the suit. The claim for interest before that was not granted. 2. The appealing defendants 1 and 8 contend that the suit was barred by limitation; in terms of the Muslim law, the grant of interest is unsustainable, since collection of interest or payment of interest is not permitted under that law. In so far as the plea of the limitation concerned, the court below rightly noticed that, even according to the defendants, they continued to pay interest or share of profit as they would call it. The court below was, therefore, justified in taking the view that there was clear acknowledgment of liability and suit was not barred. In so far as the plea that the Muslim law does not permit payment of interest and, therefore, a decree for interest is unsustainable is concerned, we have already noted that the grant of RFA No.246/2011 : 3 : interest is only from the date of suit. For one thing, even according to the defendants, there was an agreement to pay share of profits. The plea was that, as the business had run to loss, no share of profit was payable. The rate of interest varied up to 24%. The law of contracts would prevail. In so far as the grant of interest at 6% per annum is concerned, the power is exercised under Section 34 of the Code of Civil Procedure. That piece of secular law would override any principle of Muslim law, which cannot be pressed into service, except with legislative support. 3. Before parting, we may also note that the judgment itself refers to different transactions and the activities of the defendants, which led them ultimately to criminal prosecutions and also different civil suits apart from proceedings before the CDRF. We do not find any RFA No.246/2011 : 4 : ground on re-appreciation of evidence or otherwise to interfere with the impugned judgment. In the result, appeal fails and the same is dismissed. Sd/- (THOTTATHIL B. RADHAKRISHNAN, JUDGE) Sd/- (S.S.SATHEESACHANDRAN, JUDGE) aks/12.04 // True Copy // P.A. To Judge