IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 4TH DECEMBER 2008 / 13TH AGRAHAYANA 1930 WP(C).No. 35514 of 2008(C) -------------------------- AGAINST THE ORDER DATED 14/03/2008 IN IA.197/2008 IN OS.415/1998 of PRINCIPAL SUB COURT,PARAVUR .................... PETITIONER/ PETITIONER-JUDGMENT DEBTOR: ------------------------------------------ M.D.AUGUSTHY, S/O.DEVASSY, MANGALAPPILLY HOUSE, CHERUKADAPPURAM, NORTH KUTHIATHODE, ERNAKULAM DISTRICT. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE RESPONDENT: RESPONDENT-DECREE HOLDER: ---------------------------------------- THE CATHOLIC SYRIAN BANK, AYROOR BRANCH REPRESENTED BY ITS BRANCH MANAGER. BY ADV. SHRI. KALKURA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J. ------------------------------- W.P(C) No. 35514 OF 2008-C ------------------------------- Dated this the 4th December, 2008. JUDGMENT Petitioner is the defendant in O.S.415/1998 on the file of the Sub Court, North Paravur. The defendant Catholic Syrian Bank instituted the said suit for recovery of money due from the petitioner/defendant under a loan transaction. The suit was decreed for an amount of Rs.1,27,152/- with interest at the rate of 17.5% per annum with quarterly rests from the date of suit till realization with costs and charged over the schedule property and ordering refund of half court fee paid on the plaint. The defendant filed I.A.197/2008 in the court below for correction of decree and judgment invoking Sections 151 and 152 of the Civil Procedure Code reducing future interest to 6% and the court below vide Ext.P5 order dismissed the said application. Hence this writ petition assailing Ext.P5 order. 2. The court below has in Ext.P5 order observed that the respondent/bank claimed interest at 17.5% with quarterly rests being a commercial transaction and as agreed to by the WPC 35514/2008 2 petitioner/defendant while availing of loan by way of overdraft facility for his brick manufacturing business. The loan agreement was also produced to evidence the transaction alleged. Though the petitioner/defendant filed written statement disputing the rate of interest there was no contention for him that the loan was not availed for commercial purpose. Further the defendant himself filed memo in the court below withdrawing his contentions and it was accordingly that the suit was decreed. After having raised an objection with respect to the claim of interest at 17.5% at quarterly rests claimed in the plaint contrary to the agreement entered into with the respondent/bank, the petitioner/defendant has withdrawn his contentions and agreed to a decree being passed as prayed for. The matter is now pending in execution and the property is brought to sale, though the petitioner has filed the petition to correct the judgment and decree with a view to delay the execution of the decree. The claim advanced in I.A.197/2008 in the circumstances discussed above is also barred by principles of constructive res judicata. The court below was right in dismissing the I.A vide Ext.P5 WPC 35514/2008 3 order. There is absolutely no merit in this writ petition and this writ petition is dismissed. K.P.BALACHANDRAN JUDGE jj